The United Nations Special Procedures System [1 ed.] 9789004304703, 9789004304697

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The United Nations Special Procedures System

Nottingham Studies on Human Rights Published under the auspices of the Human Rights Law Centre of the University of Nottingham

Edited by Dominic McGoldrick David Harris

VOLUME 6

The titles published in this series are listed at brill.com/nshr

The United Nations Special Procedures System Edited by

Aoife Nolan Rosa Freedman Thérèse Murphy

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Nolan, Aoife, editor. | Freedman, Rosa, editor. | Murphy, Thérèse, editor. Title: The United Nations special procedures system / Edited by Aoife Nolan, Rosa Freedman, Therese Murphy. Description: Leiden : Brill Nijhoff, 2017. | Series: Nottingham studies on human rights ; 6 | Includes bibliographical references and index. Identifiers: lccn 2016049410 (print) | lccn 2016049561 (ebook) | isbn 9789004304697 (hardback : alk. paper) | isbn 9789004304703 (E-book) Subjects: lcsh: United Nations Human Rights Council. | Human rights. Classification: lcc k3241 .u549 2017 (print) | lcc k3241 (ebook) | ddc 341.4/8--dc23 lc record available at http://lccn.loc.gov/2016049410

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 2211-7342 isbn 978-90-04-30469-7 (hardback) isbn 978-90-04-30470-3 (e-book) Copyright 2017 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Acknowledgements ix List of Illustrations x List of Abbreviations xi Notes on Contributors xiv Introduction 1 Aoife Nolan, Rosa Freedman and Thérèse Murphy

Part 1 The ‘System’ of Special Procedures 1 The History of the Special Procedures: A ‘Learning-by-Doing’ Approach to Human Rights Implementation 11 Elvira Domínguez-Redondo 2 Special Procedures: Independence and Impartiality 52 Jane Connors 3 Picking and Choosing? Country Visits by Thematic Special Procedures 87 Felice D. Gaer 4 The un Special Procedures System: The Role of the Coordination Committee of Special Procedures 131 Najat Maalla M’jid 5 Strengthening Cooperation: The Key to Unlocking the Potential of the Special Procedures 141 Marc Limon

Part 2 Exploring Opportunities and Challenges through Mandate Holders’ Work 6 Coping Mechanisms for State Non-cooperation 155 Ahmed Shaheed and Rose Parris Richter

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Doing It All and Doing It Well? A Mandate’s Challenges in Terms of Cooperation, Fundraising and Maintaining Independence 188 Inga T. Winkler and Catarina de Albuquerque

8

Working Out a Working Group: A View from a Former Working Group Member 223 Olivier de Frouville

9

Special Procedures in the Digital Age 261 Ella McPherson and Thomas Probert

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Principle, Politics and Practice: The Role of un Special Rapporteurs on the Right to Adequate Housing in the Development of the Right to Housing in International Law 271 Jessie Hohmann

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Life as a un Special Rapporteur: The Experience of the un Special Rapporteur for Human Rights in Cambodia 297 Surya P. Subedi

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Business and Human Rights in the United Nations Special Procedures System 315 Daria Davitti

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The Challenge of Non-state Actors: The Experience of the un Special Rapporteur on the Right to the Highest Attainable Standard of Health (2002–08) 336 Paul Hunt

Part 3 Special Procedures and the ‘Bigger Picture’ 14 The un Special Rapporteur on Torture in the Developing Architecture of un Torture Protection 351 Malcolm Evans 15

The African State and Special Procedures: Agency, Leverage and Legitimacy 385 Jonathan Fisher and Danielle Beswick

Contents

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Supporting or Resisting? The Relationship between Global North States and Special Procedures 411 Rosa Freedman and François Crépeau

17

Ending Reprisals: The Role and Responsibilities of the Special Procedures of the un Human Rights Council 443 Phil Lynch

Index 451

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Acknowledgements This volume has its genesis in an expert workshop on the United Nations Special Procedures System which was held at the University of Nottingham in November 2014. Thanks are due to colleagues at the Human Rights Law Centre, including David Harris, Dominic McGoldrick, Agnes Flues, Ruth Brittle and Laura Wills, who provided invaluable support with regard to that event. We are grateful to those who have assisted us at different stages in the production of this collection, particularly Petr Mádr who provided outstanding research assistance. Lydia Bright Davies also provided assistance during the early stages of the collection. As always, the support of colleagues at our respective universities is much appreciated. Finally, especial thanks are owed to our families and friends – both old and new – who have borne with us throughout the process.

List of Illustrations Figures 6.1 8.1

The Islamic Republic of Iran: responses to communications issued by Special Procedures 169 A virtuous cycle of cooperation 253

Tables 3.1 3.2 6.1

Visits and requests according to regional groups 101 Recommendations about Special Procedures made at upr sessions 105 The Islamic Republic of Iran: responses to requests for visits from 2003 168

List of Abbreviations achpr au cat cc ced

African Commission on Human and Peoples’ Rights African Union United Nations Committee against Torture Coordination Committee of Special Procedures International Convention for the Protection of All Persons from Enforced Disappearance cedaw Convention on the Elimination of All Forms of Discrimination against Women cescr United Nations Committee on Economic, Social and Cultural Rights chr United Nations Commission on Human Rights cmw Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families cpr civil and political rights crc Convention on the Rights of the Child crpd Convention on the Rights of Persons with Disabilities cso civil society organisations csr corporate social responsibility cuny-bc City University of New York, Brooklyn College dprk Democratic People’s Republic of Korea drc Democratic Republic of Congo ecosoc United Nations Economic and Social Council egi Ethical Globalization Initiative escr economic, social and cultural rights eu European Union FfT Freedom from Torture fotcd Field Operations and Technical Cooperation Division fpic free, prior and informed consent gp Guiding Principles on Business and Human Rights gsk GlaxoSmithKline hrc United Nations Human Rights Council HRuF Human Rights up Front Action Plan iac international armed conflict ibp institution-building package icc International Criminal Court iccpr International Covenant on Civil and Political Rights icescr International Covenant on Economic, Social and Cultural Rights icrc International Committee of the Red Cross

xii ict idp iit imf jiu loipr ngo niac npm oeiwg

List of Abbreviations

information and communication technologies internally displaced persons international investment treaties International Monetary Fund United Nations Joint Inspection Unit Lists of Issues Prior to Reporting non-governmental organisation(s) non-international armed conflict National Preventive Mechanisms Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights ohchr Office of the United Nations High Commissioner for Human Rights oios United Nations Office of Internal Oversight opcat Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment oppba United Nations Office of Programme Planning, Budget and Accounts pbi statement of programme budget implications rrdd Research and Right to Development Division sg Secretary-General sp Special Procedure(s) spb Special Procedures Branch spt Subcommittee on the Prevention of Torture sr Special Rapporteur(s) srsg Special Representative of the Secretary-General srt United Nations Special Rapporteur on Torture swift Society for Worldwide Interbank Financial Telecommunication tgr third generation rights ttip Transatlantic Trade and Investment Partnership un United Nations uncat Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment undp United Nations Development Programme unga United Nations General Assembly ungc United Nations Global Compact unicef United Nations Children’s Fund unmik United Nations Interim Administration Mission to Kosovo upr Universal Periodic Review weog West European and Others Group wg Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises

List of Abbreviations wgad wgeid wto

Working Group on Arbitrary Detention Working Group on Enforced or Involuntary Disappearances World Trade Organization

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Notes on Contributors Dr Danielle Beswick is a Senior Lecturer and Director of Research at the International Development Department, University of Birmingham. She completed her PhD at Manchester University, researching the relationship between aid and statehood in post-genocide Rwanda and how the country came to be considered a ‘donor darling’. Conceptually, Danielle’s research is situated at the interface of security and development, exploring how fragile and conflict-affected States seek to improve their security through relationships with donors. This has led to research on topics including the relationship between international aid and national security policy in Rwanda, involvement of African States in peacekeeping, and sources and limits of African agency. She has co-edited special issues of Third World Quarterly and Conflict Security and Development, and published articles in leading journals including African Affairs and Development and Change. Danielle has received research funding from the British Academy and the Economic and Social Research Council. Her most recent publication is Conflict Security and Development: An Introduction (with Paul Jackson; 2nd edn, Routledge 2015). Ms Jane Connors is the International Advocacy Director (Law and Policy) of Amnesty International, based in Geneva. She is also a Visiting Professor in Practice at the London School of Economics and Political Science’s Centre for Women, Peace and Security and the chair of the board of trustees of the uk-based charity, Keeping Children Safe. She was formerly Director of the Research and Right to Development Division at the Office of the United Nations High Commissioner for Human Rights, prior to which she worked in the Human Rights Treaties Division and as Chief of the Special Procedures Branch. From 1996 to 2002, she was the Chief of the Women’s Rights Section in the Division for the Advancement of Women in the Department of Economic and Social Affairs in New York. Jane has also been a law teacher at the School of Oriental and African Studies in London and other universities in the United Kingdom and Australia. Professor François Crépeau is Full Professor and the Hans & Tamar Oppenheimer Chair in Public International Law at the Faculty of Law of McGill University, and Director of the McGill Centre for Human Rights and Legal Pluralism. He is the UN Special

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Rapporteur on the Human Rights of Migrants (2011–17) and was the Chair of the Coordination Committee of the United Nations Human Rights Special Procedures (2014–15). François is guest professor at the Université catholique de Louvain (2010–18). He has written, edited or co-edited nine books. François is a member of the Advisory Committee of the International Migration Initiative of the Open Society Foundations, and is a member of several editorial boards. He heads the ‘Mondialisation et droit international’ collection at Éditions Bruylant-Larcier. François is a Fellow of the Royal Society of Canada, was a Fellow of the Pierre Elliott Trudeau Foundation, and is an Advocatus Emeritus of the Quebec Bar Association. Dr Daria Davitti is an assistant professor at the University of Nottingham, School of Law. She previously worked at the University of Keele. Her expertise is in the protection of human rights in situations of armed conflict. Her research focusses on the relationship between international investment law and international human rights law in conflict contexts, and on the impact of extractive sector investments on economic, social and cultural rights. Daria’s work prior to returning to academia included deployment with the United Nations Assistance Mission in Afghanistan as a Human Rights Field Officer, as a consultant for the Office of the United Nations High Commissioner for Human Rights (ohchr) and as a Monitor and Evaluation Officer for the Danish Committee for Afghan Refugees. Ms Catarina de Albuquerque is the Executive Chair of the Sanitation and Water for All Global Partnership. She was the first un Special Rapporteur on the Human Rights to Water and Sanitation and before that she was the Chairperson-Rapporteur of the un Working Group on the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. Since 1997 she has chaired the negotiations of several initiatives in the areas of economic, social and cultural rights and child rights. She was the Portuguese negotiator of the two Optional Protocols to the Convention on the Rights of the Child. She has lectured in human rights law and has been a consultant for unicef, undp and the European Commission. She was awarded the Human Rights Gold Medal by the Portuguese Parliament for outstanding work in the area of human rights. Her work in human rights was also honoured by the Portuguese President of the Republic with the Order of Merit. She is a Doctor of Laws (honoris causa) from the University of North Carolina at Chapel Hill.

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Professor Olivier de Frouville is a Professor of Public Law at the University of Paris 2 (Panthéon-Assas) and Director of the Center of Research on Human Rights and Humanitarian Law. He is also a member of the Institut Universitaire de France, undertaking a programme of research called ‘On a democratic theory of International Law’. From August 2011 to August 2012, Olivier was a visiting fellow at the Lauterpacht Centre for International Law and at Clare Hall, University of Cambridge. Olivier de Frouville has worked for more than twenty years as a human rights expert in the United Nations. In June 2014, he was elected as a member of the un Human Rights Committee. Between November 2008 and November 2014, he was a member of the United Nations Working Group on Enforced or Involuntary Disappearances, of which he was the Chairperson-Rapporteur between April 2012 and October 2013. He was also a member of the Coordination Committee of un Special Procedures in 2013–14. Between 2009 and 2014, he was a member of the National Consultative Commission on Human Rights in France. Dr Elvira Domínguez-Redondo is Associate Professor of International Law at Middlesex University, London, and Adjunct Lecturer of the Irish Centre for Human Rights (nui Galway, Ireland). Elvira has previously held a range of different academic positions, including at the Transitional Justice Institute (University of Ulster), the Irish Centre for Human Rights, the University of Alcalá de Henares, and University of Carlos iii de Madrid. She has worked as a consultant with the un Special Rapporteur on torture at the Office of the United Nations High Commissioner for Human Rights. Elvira specialises in international law and human rights legal theory. She is the author of two books, Public Special Procedures of the un Commission on Human Rights and Minority Rights in Asia (co-authored with Joshua Castellino). Elvira has written a wide range of articles on human rights topics for academic journals. Her current research focusses on the best strategies for the promotion and protection of human rights within international organisations, the interlinkage between peace, development and human rights, the co-existence of multiple human rights mechanisms dealing with human rights communications at un level, and territorial disputes in East-Asia. Sir Professor Malcolm Evans kcmg obe is Professor of Public International Law at the University of Bristol where he has taught since 1988. His areas of legal specialism include both international human rights protection and the international law of the sea. In the field of human rights his particular interests concern torture and torture prevention and the protection of religious liberty under international law, on both of which he

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was written extensively. He became a member of the un Subcommittee for the Prevention of Torture in 2009 and since 2011 has served as its Chair. In 2014–15 he was Chair of the Meeting of Chairs of un Human Rights Treaty Bodies. From 2002–13, he was a member of the osce odihr Advisory Council on the Freedom of Religion or Belief. He is a member of the Foreign Secretary’s Human Rights Advisory Group and has been a member of fco Advisory Groups on Freedom of Religion or Belief and on Torture Prevention. From 2003 to 2005, he was Head of the School of Law and, from 2005 to 2009, Dean of the Faculty of Social Sciences and Law at the University of Bristol. He is General Editor of the International and Comparative Law Quarterly and Co-Editor in Chief of the Oxford Journal of Law and Religion. Major published works include: Religious Liberty and International Law in Europe (cup 1997), Preventing Torture (oup 1998), Combating Torture in Europe (Council of Europe 2002), Manual on the Wearing of Religious Symbols in Public Areas (Council of Europe/Brill 2009), The Optional Protocol to the un Convention against Torture (oup 2011). He is Editor of International Law (4th edn, oup 2014), Blackstone’s International Law Documents (12th edn, oup 2015) and The Changing Nature of Religious Rights under International Law (oup 2015). Dr Jonathan Fisher is a Senior Lecturer in African Politics at the University of Birmingham. Jonathan’s DPhil, undertaken at the University of Oxford and completed in 2011, focussed on the agency of Eastern African States in the international system with a particular focus on the areas of security, governance and human rights. He has since published on this topic in a variety of leading peer-reviewed journals (African Affairs, Conflict, Security and Development, International Affairs, Journal of Modern African Studies and World Development) and is currently writing a book on the interface between conflict, security and development in Africa. His research explores state approaches to security challenges in the East African region and he is particularly interested in the regional politics of conflict and conflict resolution. He has carried out fieldwork in Uganda, Eritrea, Ethiopia, Rwanda, Djibouti and Kenya and held an Honorary Research Fellowship in the uk Foreign and Commonwealth Office between 2013–14. He has been based in the University of Birmingham’s International Development Department since 2011. Professor Rosa Freedman is Professor of Law, Conflict and Global Development at the University of Reading. Her research focusses on the un and human rights, in particular the ­impact of politics upon the creation and protection of international human rights law. Rosa has published extensively on the un human rights bodies and

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on un peacekeeping and accountability for human rights abuses committed during such operations. Rosa has published two books, Failing to Protect: The un and the Politicization of Human Rights (Hurst; oup 2014) and The United Nations Human Rights Council: A Critique and Early Assessment (Routledge 2013), and academic articles in journals including the European Journal of International Law and Human Rights Quarterly. She writes for national and online media, works closely with the un and with state governments, and sits on the advisory boards of several international ngos. Ms Felice D. Gaer is director of the Jacob Blaustein Institute for the Advancement of Human Rights. The Institute conducts research and advocacy to strengthen international human rights protections and institutions worldwide. She is an independent expert member on, and currently Vice-Chair of, the United Nations Committee Against Torture and was its Rapporteur on Follow-up to Country Conclusions (2003–14). From 2001 to 2012, Felice served five terms (including three times as Chair) on the bipartisan federal us Commission on International Religious Freedom. She is a member of the Council on Foreign Relations. Felice was appointed as Regents Professor at the University of California at Los Angeles in 2010. She is the author of many articles about human rights and the un, including the article ‘And Never the Twain Shall Meet? The Struggle to Establish Women’s Rights as International Human Rights’ in the American Bar Association’s book, The International Human Rights of Women: Instruments of Change. She is co-editor with Christen Broecker of The United Nations High Commissioner for Human Rights: Conscience for the World (Brill 2013), in which she also wrote a chapter on Special Rapporteurs. Dr Jessie Hohmann has been a lecturer in law at Queen Mary, University of London, since 2012. She was previously a British Academy Post-Doctoral Research Fellow at the Lauterpacht Centre for International Law, University of Cambridge. She has held visiting research positions at the University of Sydney and Osgoode Hall (York ­University), Canada. Jessie has broad research interests in the fields of human rights and international law, including particular interests in: the right to housing and economic, social and cultural rights more broadly; indigenous rights; the material culture and objects of international law; and the role of human rights in social struggles. Her monograph The Right to Housing: Law, Concepts, Possibilities (Hart Publishing 2013) explores these areas, and was shortlisted for the sls Peter Birks Prize for Outstanding Legal Scholarship in 2013. Jessie teaches in these areas, and in uk Public Law. Dr Hohmann is a member of the

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Human Rights Collegium at Queen Mary, where among other roles she is editor of the Queen Mary Human Rights Law Review. She is also a member of the Centre for Law and Society in a Global Context (clsgc). As a member of the Law Society of Upper Canada, she is a fully qualified barrister and solicitor in Ontario. Professor Paul Hunt is a Professor in Law at Essex University and Adjunct Professor at Waikato University. He served as an independent expert on the un Committee on Economic, Social and Cultural Rights (1999–2002) and un Special Rapporteur on the Right to the Highest Attainable Standard of Health (2002–08). Between 2011 and 2013, he advised who Assistant Director-General, Dr Flavia Bustreo, on human rights issues. He has written extensively on economic, social and cultural rights, especially the right to health. His books include: Reclaiming Social Rights: International and Comparative Perspectives (Dartmouth 1996); Culture, Rights and Cultural Rights: Perspectives from the South Pacific (Huia 2000, coedited with Margaret Wilson); The World Bank, imf and Human Rights (Wolf Legal Publishers 2003, co-edited with Susan Matthews and Willem van Genugten); Maternal Mortality, Human Rights and Accountability (Routledge 2013, co-edited with Tony Gray); and Women’s and Children’s Health: Evidence of Impact of Human Rights (who 2013, co-authored). He has an Honorary Doctorate from the Nordic School of Public Health. Mr Marc Limon is Executive Director of the Universal Rights Group (urg), a Geneva-based think tank focussed on international human rights policy. Prior to founding the urg in 2013, Marc worked as a diplomat at the un Human Rights Council from the body’s establishment in 2006 until the end of 2012. This included participating in the negotiations on the institution-building package, on the Council’s mid-term review, and on a wide range of thematic and country-specific issues. He was lead negotiator on nine different un resolutions dealing with issues including human rights and climate change, human rights and the environment, freedom of assembly and association, and the Third Optional Protocol to the un Convention on the Rights of the Child. Between 2006 and 2012, Marc also prepared reports for and interacted with all un human rights treaty bodies, drafted national reports under the Universal Periodic Review, and organised five Special Procedure country missions. Marc has written ­extensively on the international human rights system including on Special Procedures. He has published articles in the Harvard Environmental Law Review, the Review of European Community and International Environmental Law, and the Georgia

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Journal of International and Comparative Law. He holds Masters degrees from the University of Cambridge, Katholieke Universiteit Leuven and the Université libre de Bruxelles. Mr Phil Lynch is Director of the International Service for Human Rights (ishr). ishr works to support and protect human rights defenders, strengthen human rights systems and ensure the effective implementation of the un Declaration on Human Rights Defenders at the national level. From 2006 to 2012, Phil was Executive Director of the Human Rights Law Centre in Australia. Before this he worked as Manager of Homeless Law (2001–05) and as a lawyer with global law firm Allens Linklaters. Phil has published more than 20 refereed journal articles in publications including the Melbourne University Law Review, the Sydney Law Review, the Alternative Law Journal and the Australian Journal of Human Rights and has contributed numerous chapters on contemporary issues in international human rights to edited collections published by Cambridge University Press, Thomson Reuters, and Intersentia, amongst others. Dr Najat Maalla M’jid served as un Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography between May 2008 and June 2014. Najat is a medical doctor in paediatrics, and has been engaged for the past three decades in the protection of vulnerable children. Najat also works as Expert-Consultant in the development and monitoring of national policies on the protection of the child in her native country of Morocco, as well as in Africa, Latin America, Europe, Asia and mena countries. She also works as a lecturer on child rights in Moroccan and international universities, as well as on social and development policies. Najat is a member of the Moroccan National Council on Human Rights, and the founder and an active member of the nongovernmental organisation bayti, the pioneering programme addressing the situation of children living and working in the streets in Morocco. She is also a member of several regional and international child rights organisations, platforms and networks. Najat is the author of several reports and articles on child rights protection, including child sexual exploitation online, child sexual exploitation in travel and tourism, child prostitution, child labour, street children, child sensitive complaint mechanisms, child participation, child protection systems, and ­prevention of sale and sexual exploitation of children. Najat has won several national and international awards for her strong commitment to protecting the rights of the child.

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Dr Ella McPherson is Lecturer in the Sociology of New Media and Digital Technology at the University of Cambridge, where she is also a Research Associate of the Centre of Governance and Human Rights as well as the Anthony L. Lyster Fellow in Sociology at Queens’ College. Ella’s current research is on human rights reporting in the digital age, supported by an esrc Future Research Leader grant. Her publications focus on this topic as well as on her earlier media ethnography of human rights reporting at Mexican newspapers. She is currently leading a team to develop The Whistle, a digital human rights reporting application that supports the verification of submitted information. Ella recently contributed research to un Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions Christof Heyns’ thematic report to the un Human Rights Council on the ‘Use of Information and Communication Technologies to Secure the Right to Life’. Professor Thérèse Murphy is Professor of Law and Director of the Health & Human Rights Unit at Queen’s University Belfast. She is also an inaugural fellow of Queen’s Pioneer Research Programme on risk and inequality. Previously she worked at the University of Nottingham, where she co-founded the Economic & Social Rights Unit within the Human Rights Law Centre. She has been a visitor at both the European University Institute and the University of Toronto; she has also been a Fulbright Scholar at Harvard Law School and, most recently, the Holding Redlich Distinguished Visiting Fellow at the Castan Centre for Human Rights at Monash University. She is a longstanding member of the editorial board of the Human Rights Law Review, and her books include Health and Human Rights (Hart 2013), New Technologies & Human Rights (oup 2009), and European Law & New Health Technologies (oup 2013). Professor Aoife Nolan is Professor of International Human Rights Law at the School of Law at the University of Nottingham. She co-directs the University’s Rights and Justice Research Priority Area, the world’s largest cluster of rights and justice scholars, involving over 700 members from 22 different University centres. She has published extensively in the area of human rights law, particularly in the fields of children’s rights and economic and social rights. She was founding coordinator of the Economic and Social Rights Academic Network uk and Ireland (esranuki) and is currently a member of the Editorial Boards of the Human Rights Law Review, the International Human Rights Law Review and the International Journal of Children’s Rights. In addition, she has worked with and acted as an expert advisor to a wide range of international and national bodies and

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organisations working on human rights issues, including un Special Procedures, the un Committee on the Rights of the Child, the Council of Europe, a large number of international ngos, and multiple national human rights institutions. Dr Thomas Probert is a Research Associate at the Centre of Governance and Human Rights at the University of Cambridge and a Senior Researcher of the Centre for Human Rights at the University of Pretoria. He has worked as a consultant to the un Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, based at the Office of the un High Commissioner for Human Rights in Geneva. Ms Rose Parris Richter worked as a researcher and strategist on high-profile political and labour campaigns in the United States from 2000 to 2006. Rose later served as Advisor for the Permanent Mission of Timor-Leste to the United Nations, where she worked on development and human rights issues. From 2010 to 2011, she worked as a Senior Advisor to the United Nations for the Ministry of Foreign Affairs of the Republic of Maldives. Rose has worked as Senior Adviser to the United Nations Special Rapporteur Ahmed Shaheed since his 2011 appointment by the Human Rights Council to monitor human rights in Iran. In this role, she has been responsible for research and analysis of trends in human rights topics of interest to the Special Rapporteur, and worked to establish and lead the Human Rights in Iran Unit for the Research Foundation at the City University of New York. The Unit’s projects work to provide technical and logistical assistance to the un Special Rapporteur on the human rights situation in Iran, and to civil society focussed on strengthening human rights protections in the country. Dr Ahmed Shaheed is a Lecturer in the School of Law and Deputy Director of the Human Rights Centre, University of Essex. He is an internationally recognised expert on foreign policy, international diplomacy, democratisation and human rights ­reform especially in Muslim States. He has twice held the Office of Minister of Foreign Affairs of the Republic of the Maldives, a position he used to promote human rights standards and norms. These included revoking a ‘ban’ on the Universal Declaration of Human Rights and acceding to a number of core international human rights treaties. He also issued a standing invitation to all un Special Procedures, facilitated visits by several mandate holders, and invited a Human Rights Adviser of the Office of the United Nations High Commissioner for Human Rights to reside in the Maldives. Ahmed has served as the Special

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Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran since 2011. In 2016, he was appointed by the un Human Rights Council to the office of un Special Rapporteur on Freedom of Religion or Belief, a role which he will take on in November 2016. He is also the Chair of the Geneva-based human rights think tank, Universal Rights Group. In 2015, he was awarded the Leo Nevas Human Rights Award by the un Foundation for a lifetime of achievement advancing human rights in his country and abroad. His teaching and research interests include human rights diplomacy, Islam and human rights, and big data and human rights. Professor Surya P. Subedi obe is Professor of International Law at the University of Leeds, a practising barrister in England (practising out of a set in London – Tanfield Chambers), and an Advocate of the Supreme Court of Nepal. He was the un Special Rapporteur on the Situation of Human Rights in Cambodia from 2009 to 2015 and was a government nominee for appointment to the position of the un High Commissioner for Human Rights in 2014. Since 2010 he has served as a member of the Advisory Group on Human Rights to the British Foreign Secretary. He also has worked as a legal advisor to the Ministry of Foreign Affairs of Nepal and represented the country in the un General Assembly. He was elected to the Institut de Droit International in 2011, is a founder editor of the Asian Journal of International Law published by Cambridge University Press, and Editor of the ‘Human Rights and International Law’ monographs series published by Routledge. He holds a DPhil in Law from the University of Oxford, an llm with Distinction from the University of Hull, and an llb and an ma from Tribhuvan University, Nepal. He was made an obe for services to international law and to Britain–Nepal relations in 2004. Dr Inga T. Winkler is a lecturer at the Institute for the Study of Human Rights at Columbia University. From 2009 to 2014, she worked as Legal Advisor to the un Special Rapporteur on the human rights to water and sanitation. She has been a ­scholar-in-residence at the Center for Human Rights and Global Justice at nyu. She has also held visiting positions at the University of Stellenbosch and at the University of Berkeley, contributing to clinical teaching at the latter institution. Inga has also worked as a consultant for various international organisations and ngos including the European Parliament, fao, undp, the un Water Supply and Sanitation Collaborative Council, and the Global Initiative for Economic, Social and Cultural Rights. Inga holds a German law degree and a doctorate in international human rights law.

Introduction Aoife Nolan, Rosa Freedman and Thérèse Murphy Described by Kofi Annan as the ‘jewel in the crown’1 of the United Nations human rights system, the Special Procedures (sp) system is a key element of the expanding international framework for human rights protection and promotion. Since the first mandate was created in 1967,2 laying the foundations for the system that we have today, we have seen a significant evolution in the role and functions of sp: from a concentration on mass violations of human rights to a consideration of individual petitions; from a small number of countryfocussed mandates to (as of 1 July 20163) 43 thematic mandates and 14 country ones; from being a minor and marginal part of the un human rights framework to playing a crucial role in Human Rights Council and General Assembly sessions; from a mechanism of experts operating independently to one another to a coordinated system of mandate holders; from providing targeted reports on only very specific human rights issues to being a main source of informationsharing and reporting on a plethora of human rights threats across the globe; from operating largely under the radar to being the subject of significant state, civil society and academic expectations, resulting in harsh criticism when sp are regarded as having failed, or erred, in their work.4 However, while there has been extensive scholarship in relation to other aspects of the un human rights system – such as the work of the un 1 Kofi Annan referred to sp as ‘the crown jewel of the [human rights] system’ in a message to the 3rd Session of the Human Rights Council (hrc) on 29 November 2006: un ‘SecretaryGeneral, in Message to Human Rights Council, Cautions against Focusing on Middle East at expense of Darfur, Other Grave Crises’ (un, 29 November 2006) ˂www.un.org/press/en/2006/ sgsm10769.doc.htm˃ accessed 30 July 2016. 2 un Economic and Social Council Res 1235 (xlii) (6 June 1967) un Doc E/4393. 3 A new Independent Expert on violence and discrimination against sogi was created at the hrc 32nd Session in June 2016: unhrc Res 32/2, ‘Protection against violence and discrimination based on sexual orientation and gender identity’ (30 June 2016) un Doc A/HRC/ RES/32/2 (adopted as amended, by a recorded vote 23 to 18, with 6 abstentions). 4 A recent example of this point is the volubly negative reaction on the part of state actors, civil society, academics and others to the 2016 decision of the un Working Group on Arbitrary Detention (wgad) finding that Julian Assange was arbitrarily detained by the Governments of Sweden and the United Kingdom: wgad ‘Opinion No. 54/2015 concerning Julian Assange (Sweden and the United Kingdom of Great Britain and Northern Ireland)’ (22 January 2016). A useful academic critique of the decision is provided in M Happold, ‘Julian Assange and the un Working Group on Arbitrary Detention’ (ejil: Talk!, 5 February 2016) accessed 30 June 2016.

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­treaty-monitoring bodies, the Human Rights Council, and the Office of the un High Commissioner for Human Rights (ohchr)5 – there has been relatively little academic attention paid to the sp system.6 Moreover, the limited scholarship that does address sp frequently focusses on specific mandates as part of broader work on a specific human right or country situation. As such, little assessment has been undertaken of the system as a whole, including with regard to mandate holders’ roles, functions, and the obstacles that they confront in their work. The lack of knowledge about the system impacts upon States, civil society, un bodies and even mandate holders themselves. This lacuna is ever more problematic given the growing profile and effectiveness of the sp’s work, as well as the increasing attention and challenges that they face, both externally from States and internally from within the un system. Given the current ‘state of play’ of the sp system, it is essential that careful attention and analysis be focussed on the strengths and weaknesses of the system. How does the sp system contribute to international human rights protection? How, when and why does it fail to do so? What steps can and should be taken to address shortcomings both within the system and in terms of the context in which it operates? Conscious of – and deeply concerned about – these unanswered questions, the editors organised a workshop held at the University of Nottingham Human Rights Law Centre on ‘The United Nations Special Procedures System’ that took place in late 2014. The discussions – and sometimes strong disagreement – at 5 Key recent examples of monographs and edited collections on these topics include: H Charlesworth and E Larking (eds), Human Rights and the Universal Periodic Review: Rituals and Ritualism (cup 2015); R Freedman, The un Human Rights Council: A Critique and Early Assessment (Routledge 2013); P Alston and F Megret (eds), The United Nations and Human Rights (2nd edn, oup forthcoming 2016); H Keller and G Ulfstein (eds), un Human Rights Treaty Bodies: Law and Legitimacy (cup 2012); BG Ramcharan, The Law, Policy and Politics of the un Human Rights Council (Brill 2015); F Gaer and C Broecker (eds), The United Nations High Commissioner for Human Rights: Conscience for the World (Brill 2014). 6 Existing works on the sp system include: M Lempinen, Challenges Facing the System of Special Procedures of the United Nations Commission on Human Rights (Åbo Akademi University 2001); I Nifosi, The un Special Procedures in the Field of Human Rights (Intersentia 2005); E Domínguez-Redondo, Los procedimientos publicos especiales de la Comision de Derechos Humanos de Naciones Unidas (Tirant lo Blanch 2005); BG Ramcharan, The Protection Roles of un Human Rights Special Procedures (Martinus Nijhoff 2009); Special Edition of International Journal of Human Rights on ‘The Role of the Special Rapporteurs of the United Nations Human Rights Council in the Development and Promotion of International Human Rights Norms’, 15(2) (2011); T Piccone, Catalysts for Change: How the u.n.’s Independent Experts Promote Human Rights (Brookings Institution Press 2012). One notable recent addition is H Cantú Rivera (ed), The Special Procedures of the Human Rights Council (Intersentia 2015).

Introduction

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that event served as the genesis of this volume which seeks to bring rigorous scholarly interrogation to bear on the Special Procedures. In developing the collection, we felt it vital that the volume reflect as broad a range of perspectives as possible, incorporating both key players within, and commentators on, the sp system. Contributors include current and former mandate holders and those who assist them in their work, members of un ­human rights treaty bodies, academics and members of civil society. The collection thus combines insights from internal participants in and external ­observers of the system. Moreover, to ensure that the collection as a whole reflects the theory, the practice and the politics of the system, we have included a number of shorter reflective, policy-oriented pieces written from a practice perspective, which sit alongside the more conventional academic contributions. These shorter pieces by mandate holders and civil society members focus on specific aspects of their work within or in relation to the system, complementing the wider-ranging scholarly pieces. This variety of author perspectives and contribution types renders the collection well-placed to provide a holistic overview and comprehensive understanding of the sp system. In terms of structure, the book is divided into three parts, with the first ­being focussed on the Special Procedures system as a ‘system’. Here, ­contributors provide critical accounts of the Special Procedures’ history ­(Domínguez-­Redondo), major institutional issues affecting mandate holders (Connors), the role and challenges of country visits (Gaer), the part played by the Coordination Committee of Special Procedures in supporting and facilitating mandate holders (M’jid), and the ongoing reforms aimed at strengthening cooperation between sp and States (Limon). The chapters in Part 2 focus on the actual work done by mandate holders, detailing the ways in which they have risen (or not) to the challenges and opportunities faced by them in the performance of their role(s). These range from advancing mandates in the face of trenchant state antagonism and non-cooperation (Shaheed and Parris Richter), to striking a balance between maintaining independence, ensuring state cooperation and fundraising work (Winkler and de Albuquerque), to developing working methods and internal rules and procedures where a sp is a collective body rather than an individual mandate holder (de Frouville), to sp taking advantage of the opportunities afforded by new information and communication technologies (McPherson and Probert). Other contributors to Part 2 focus on the role of mandate holders in developing international normative standards (Hohmann), in shaping, advancing (and sometimes hindering) the way in which changes occur in international human rights law (Davitti), and in addressing historic law and governance shortcomings in specific national contexts (Subedi). Part 2 closes with a consideration of the potential for using a mechanism that historically has

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been ­conceptualised in state-oriented terms to address the activities of powerful non-state actors (Hunt). Part 3 moves on to locate the Special Procedures within a number of broader contexts. Evans’ chapter is focussed on the role of sp within the wider un architecture on torture. Fisher and Beswick address the international and the African regional sp systems, interrogating state engagement with both. Freedman and Crépeau consider the changing nature of the relationship between some Global North States and the sp system, while the central concern of Lynch’s contribution is rooted in the dangerous reality of state intimidation or reprisal faced by many human rights defenders seeking to engage with the SP. Ultimately, the collection makes clear that there is much to praise about the system; sp have played a crucial role in providing material facts, reports and recommendations in monitoring and protecting human rights. Mandate holders have responded to the political, legal and resource-related contexts in which they operate by adopting a range of innovative working methods that have resulted in sp work having greater traction.7 The reports and other work produced by mandate holders have served as important landmarks in international human rights law norm-setting.8 sp have played a central part in identifying key rights-related issues and best practices.9 There have also been many steps forward with regard to the coherence of sp as a system, and the harmonisation and coherence of working practices and streamlined methods for human rights protection and promotion.10 In recent years we have seen that ever more States and civil society actors have sought to strengthen sp, working together to ensure that this ‘crown jewel’ is preserved, polished and foregrounded within the un human rights system.11 Indeed, despite its disjointed, uneven development in sometimes-hostile soil, despite its frequently cited shortcomings, and despite the attacks posed at different times from different quarters,12 the collection demonstrates that there is unquestionably a clearly defined and strongly established system of Special Procedures that has 7 8 9 10 11 12

For more on this point, see the contributions of de Frouville, Winkler and de Albuquerque, McPherson and Probert, Hunt, and Subedi. For more on this point, see the contributions of Hohmann and Davitti. For more on the role of mandate holders in identifying best practices, see the contributions of Shaheed and Parris Richter, and Winkler and de Albuquerque. For more on this point, see the contributions of Domínguez-Redondo and Connors. For more on this point, see the contributions of Limon, and Winkler and de Albuquerque. For more on this point, see the contributions of Gaer, Shaheed and Parris Richter, and Freedman and Crépeau.

Introduction

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a set place and plays a key role in terms of the international human rights law architecture. However, it is also evident from the collection that the ad hoc development of the sp system has given rise to significant problems in terms of the conceptualisation and effective functioning of the system. While some challenges have been overcome, many remain. In some ways, the system is a victim of its own success: at a logistical level, the proliferation of mandates – resulting in creation of mandates that are sometimes vague13 and overlapping14 – has put significant pressure on resources and the capacity of the ohchr to provide the support needed by mandate holders, threatening the effectiveness and efficiency of the system as a whole.15 Other challenges relate to the structure of the sp system as it stands. As regards composition, concern remains about regional and gender representation in terms of sp mandate holders.16 And, as is evident from the collection, the system itself is non-uniform in terms of both the form and function of sp, with only limited provision for ‘joined-up action’ between mandate holders.17 There is only one annual meeting of sp per year, and March 2015 was the first time that the Coordination Committee of the Special Procedures presented an annual report to the Human Rights Council on the activities of the sp system as a whole.18 More broadly, relatively little is understood about sp outside the system, with even new mandate holders frequently having no knowledge of or exposure to the system prior to appointment. With regard to sp interplay with other parts of the un system, sp coordination with other un human rights 13 14

15 16

17 18

One often-cited example is the Independent Expert on Human Rights and International Solidarity established by unchr Res 2005/55 (20 April 2005) un Doc E/CN.4/RES/2005/55. See e.g. the Special Rapporteur on Trafficking in Persons, Especially Women and Children and the Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography. For more on this point, see in particular the contributions of Connors, Winkler and de Albuquerque, and Shaheed and Parris Richter. M Limon and T Piccone, ‘Human Rights Special Procedures: Determinants of Influence. Understanding and Strengthening the Effectiveness of the un’s Independent Human Rights Experts’ (Universal Rights Group, March 2014) 35 ˂www.brookings.edu/~/media/ research/files/reports/2014/03/19-un-human-rights-experts-evaluation-piccone/un -human-rights-experts-evaluation-piccone.pdf˃ accessed 30 July 2016. For more on the point of joined-up action, see the contributions of M’jid, and Winkler and de Albuquerque. ohchr ‘François Crépeau, the Chairperson of the Coordination Committee, presents the annual report of special procedures to the Council’ (ohchr, 18 March 2015) accessed 30 July 2016.

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entities such as treaty-monitoring bodies has not always been consistent and there is a clear need for greater cooperation between specific sp, ohchr and other un agencies.19 The chapters build on and develop the ever more extensive debate amongst States, academics, un agencies and mandate holders themselves about the appropriate parameters of the role of sp. While the legitimacy of the system, which relies on States’ consent, rests on its universal application, state-driven political processes are central to the way the system operates in practice.20 Indeed the part played by States – in creating, terminating and providing support to mandates, in engaging and cooperating (or not) with sp – has resulted in concerns about the politicisation of the system, not least because of recent efforts to control the independence of mandate holders through mechanisms such as the Code of Conduct, introduced in 2007, and appointments processes. Put differently, while the stature of the sp has increased, so too has state push-back.21 But so too has the capacity of sp to temper and resist state efforts to shackle their independence; for instance, while the Code of Conduct undoubtedly fetters sp in a range of ways, mandate holders were able to lobby effectively (with civil society allies) to fend off an earlier draft that would have constrained sp far more severely than the Code that was ultimately adopted.22 This volume does not pretend to answer all the questions arising in relation to the sp system – the claim that any one book could do so is unsustainable. It does, however, provide comprehensive coverage and analysis of most, if not all, key aspects of that system. The conclusions in it will feed into reform proposals that will strengthen the sp system, including mainstreaming the work of mandate holders within the un human rights system and throughout the un Organisation as a whole, as well as protecting the independence of those experts and ensuring that countries are not able to undermine Special 19 20 21

22

For more on these points, see the contributions of Evans, M’jid, Connors, and Winkler and de Albuquerque. For more on this point, see in particular the contributions of Domínguez-Redondo, and Freedman and Crépeau. For an account of such state push-back, see P Alston, ‘Hobbling the Monitors: Should u.n. Human Rights Monitors be Accountable?’ (2011) 52 Harvard International Law Journal 561. For more on this point, see in particular the contributions of Shaheed and Parris Richter, Limon, and Freedman and Crépeau. For an account of the negotiations around the Code of Conduct highlighting the role of sp in this context, see Alston (n 21) 588–95. For further discussion of the Code of Conduct, see E Domínguez-Redondo, ‘Rethinking the Legal Foundations of Control in International Human Rights Law: The case of Special Procedures’ (2011) 29 nqhr 261.

Introduction

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Procedures.23 Contributions also make clear the ongoing challenges faced by mandate holders, identifying areas that must be strengthened to ensure that the roles, functions and work of sp are not blocked by States. Moreover, the collection demonstrates the fundamental part that external actors such as the Human Rights Council and ohchr must play to ensure that attacks on the system do not succeed. And serious threats clearly remain. Since 2014 it has become clear that States are becoming increasingly aware of the key role played by sp. This has been evidenced not only by their engagements with mandate holders but also by efforts to block the creation of new mandates or to prevent specific individuals being appointed to mandates. March 2014 saw some States at the Human Rights Council block the list of new mandate holders presented by the Council President.24 That occurred ostensibly due to disagreement about the suitability of some individuals proposed for mandates (particularly in the context of the Occupied Palestinian Territories mandate)25 and stated concerns about the regional and gender balance of appointees.26 However, according to many insiders although not formally documented, the blocking was at least in part attributable to the fact that some States were displeased by the Council’s failure to appoint their nationals to mandates. More recently, during the June 2016 session of the Human Rights Council, many States first sought to block the creation of a new mandate on Sexual Orientation and Gender Identity minorities,27 followed the next day by Russia attempting to block the list of 23 24

25

26

27

For more on these points, see the contributions of Connors and Limon to this collection. See also Limon and Piccone (n 16). This resulted in postponement of the approval of that list being required: unhrc ‘Report of the Human Rights Council on its twenty-fifth session’ (17 July 2014) un Doc A/HRC/25/2, paras 60–62. For more on this point, see R Freedman, ‘Reform of selection process needed to strengthen Special Procedures’ (International Service for Human Rights, 20 May 2016) accessed 30 July 2016. The eventual appointee to that mandate, Makarim Wibinsono, was a candidate who had not been on the original shortlist at the March 2014 session. H Power, ‘Special Procedures mandate-holders: The new intake’ (Universal Rights Group, 9 May 2014) ˂www.universal-rights.org/blog/special-procedure-mandate-holders-the-new -intake/˃ accessed 30 July 2016. For more on this point, see ‘An l.g.b.t. Watchdog at the United Nations’ (New York Times, 1 July 2016) ˂http://mobile.nytimes.com/2016/07/02/opinion/an-lgbt-watchdog-at-theunited-nations.html?ref=opinion&referer=https://t.co/GSGlfKOKwy&_r=0˃ accessed 30 July 2016.

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proposed mandate holders,28 forcing the day’s session to run late into the night and be carried over to an additional date one week later. These incidents are not simply reflective of state discomfort with specific human rights issues and/ or individuals. Rather, they show that States are increasingly aware of the central role that Special Procedures play in the international human rights system, and that mandate holders’ work can have significant impact. Ultimately, any future efforts to defend, strengthen and reform the sp system so as to advance the effective promotion and protection of human rights will only be effective if based on an accurate understanding of Special Procedures, their work and functions, and the system’s strengths, weaknesses, and challenges. It is the editors’ hope and belief that this collection will provide the necessary tools to those seeking to carry out that vital work.

The information in the collection reflects the state of play on 1 June 2015, unless otherwise indicated by chapter authors. 28

Universal Rights Group, ‘Report on the 32nd Session of the Human Rights Council’ (urg, 11 July 2016) accessed 30 July 2016.

part 1 The ‘System’ of Special Procedures

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chapter 1

The History of the Special Procedures: A ‘Learning-by-Doing’ Approach to Human Rights Implementation Elvira Domínguez-Redondo Abstract The existence of the United Nations Special Procedures is the unintended result of the competence accorded to the United Nations Commission on Human Rights and the Sub-Commission on the Prevention of Discrimination and Protection of ­Minorities in the 1967 Economic and Social Council Resolution 1235 (xlii). This Resolution authorised both bodies ‘to examine information relevant to gross violations of human rights and fundamental freedoms’. The lack of foresight in the creation of such mechanisms, now known as ‘Special Procedures’, is a fundamental factor in explaining the evolution of methods of work developed by different mandate holders. The ‘soft’ legal basis and geo-political factors surrounding the creation and renewal of mandates explain the freedom and flexibility they have enjoyed in establishing innovative activities that are more intrusive upon state sovereignty than any other un human rights mechanism. As the significance of the Special Procedures’ work has grown, attempts to curtail their autonomy and impact have increased accordingly, facilitated precisely by what has been seen as, until recently, their major strength – the lack of a strong institutional and coherent legal framework regulating their activities. This chapter analyses the geopolitical factors, institutional efforts, and individual initiatives on the part of Special Procedures mandate holders that have resulted in the current understanding of them as a ‘system’ within the United Nations human rights machinery. The misalliance between the original conception of Special Procedures and their subsequent organic growth has determined their distinctive features both in terms of strengths and weaknesses.

Keywords history – evolution – ohchr – complaints procedure – thematic mandates – ­confidentiality – politics

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Introduction

By June 2015, 74 independent experts were mandate holders of 55 Special Procedures. Of those, 41 belong to the category ‘thematic mandates’, using the terminology of the Office of the un High Commissioner for Human Rights (ohchr) and focus on a wide range of human rights topics such as arbitrary detention, violence against women, albinism or water and sanitation.1 The remaining 14 address the situation of human rights in specific territories, known as ‘geographic mandates’, and cover Belarus, Cambodia, Central African Republic, Côte d’Ivoire, Democratic Peoples’ Republic of Korea, Eritrea, Haiti, Islamic Republic of Iran, Mali, Myanmar, Somalia, Sudan, Syrian Arab Republic and the Palestinian Territories.2 All geographic mandates, and the majority of thematic mandates, are served by individuals (under the denomination of ‘Special Rapporteur’ or ‘Independent Expert’).3 Working Groups composed of five members – one from each of the five un regional groupings4 – are in force for the thematic mandates on: people of African descent; arbitrary detention; issues of human rights and transnational corporations and other business enterprises; enforced or involuntary disappearances; the use of mercenaries as means of violating human rights and impeding the exercise of rights of people to self-determination; and the issue of discrimination against women in law and in practice. There is no clear relationship between the denomination 1 For the full list, see accessed 4 April 2016. 2 See accessed 4 April 2016. 3 The denomination of Independent Expert applies to the geographic mandates on Central African Republic, Côte d’Ivoire, Haiti, Mali, Somalia and Sudan. It is also the chosen denomination for the thematic mandates on: the enjoyment of human rights by persons with albinism; the effect of foreign debt and other related financial obligations of States on the full enjoyment of all human rights, particularly economic, social, and cultural rights; the promotion of a democratic and equitable international order; human rights and international solidarity; and the enjoyment of human rights by older persons. 4 Member States of the un are grouped into five unofficial regional groups to take into account the purposes of un General Assembly (unga) Res 1991 (xviii) (17 December 1963), unga Res 2847 (xxvi) (20 December 1971) and unga Res 33/138 (19 December 1978) un Doc A/RES/33/138. For an updated list, see United Nations Handbook 2014–2015 (New Zealand: Ministry of Foreign Affairs and Trade 2015) 15–17. See also S Daws, ‘The Origin and Development of un Electoral Groups’ in T Ramesh (ed), What is Equitable Geographic Representation in the 21st Century? (un University 1999) 11–29.

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r­ eceived (Independent Expert, Special Rapporteur – and, in the past – Special Representative, or Special Envoy) and the content or institutional position of Special Procedures. This is a politically motivated decision,5 with the denomination Special Rapporteur reserved for situations considered more ‘serious’. Still, it is possible to find examples where the change of denomination has influenced the mandate holder’s understanding of his work.6 Thematic Special Procedures were not affected by the variety of denominations until the Commission created contested mandates focussed on economic, social and cultural rights, and people in vulnerable positions.7 In 50 years of their existence, Special Procedures have grown in number and scope. However, these developments have merited little attention in academic literature. The first 40 years of operation of Special Procedures have been 5 On the meaning of the different denominations, see HM Cook, ‘International Human Rights Mechanisms. The Role of the Special Procedures in the Protection of Human Rights. The Way Forward after Vienna’ (1993) 50 Brooklyn L Rev 31, 43–44; TJ Farer and F Gaer, ‘The un and Human Rights: At the End of the Beginning’ in A Roberts and B Kingsbury (eds), United Nations, Divided World. The un’s Role in International Relations (2nd edn, Clarendon Press 1993) 240, 284; A Jernow, ‘Ad-hoc and Extra-conventional Means for Human Rights Monitoring’ (1996) 28(4) yb J Int’l L & Pol 785, 791–92. 6 When the Special Rapporteur on the situation of human rights in Guatemala was renamed ‘Special Representative’ he stated: ‘The Special Representative has studied paragraph 7 and 8 which provide in specific terms his instructions. It is clear that the Commission intended a different exercise from the investigative role of the Special Rapporteur. Information has been collected from the Government and from other reliable sources, but no attempt has been made to follow up individual denunciations of abuses of human rights. An evaluation is made subject by subject, and the Special Representative has not attempted to reach any overall conclusion. He does not consider that he has been instructed to make recommendations’: un Commission on Human Rights (unchr) ‘Report of the Special Representative, Viscount Colville Of Culross, on Guatemala, prepared in accordance with paragraph 8 of Commission Resolution 1986/62 of 13 March 1986’ (5 December 1986) un Doc E/CN.4/1987/24, para 1. Conversely, stating the irrelevance of the change of denomination, see e.g. unchr ‘Report on the human rights situation in the Islamic Republic of Iran by the Special Representative of the Commission on Human Rights, Mr Revnaldo Galindo Pohl, pursuant to Commission resolution 1991/82’ (28 January 1993) un Doc E/CN.4/1993/34, paras 369–78; unchr ‘Report on the human rights situation in the Republic of Equatorial Guinea submitted by the Special Representative of the Commission, Mr Gustavo Gallón, pursuant to Commission resolution 1999/19’ (27 January 2000) un Doc E/CN/4/2000/40, para 3. For more on the role of mandate designation vis-à-vis mandate scope, See also Winkler and de Albuqerque’s contribution to this collection. 7 See below Section III.B.

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a­ ddressed in a limited number of monographs8 and relevant articles,9 a number that cannot compare to the myriad of material produced, during the same period, to address the work of treaty bodies, the other main un mechanisms, served by independent experts, monitoring the implementation of human 8 See e.g. E Domínguez-Redondo, Los procedimientos públicos especiales de la Comisión de Derechos Humanos de Naciones Unidas (Tirant lo Blanch 2005); C Escobar-Hernández, La Comisión de Derechos Humanos de Naciones Unidas y la violación de derechos humanos y libertades fundamentales: un estudio de los procedimientos públicos especiales (PhD thesis, Universidad Complutense de Madrid 1998); M Lempinen, Challenges Facing the System of Special Procedures of the United Nations Commission on Human Rights (Institute for Human Rights: Åbo Akademi University 2001); B Rudolf, Die thematischen Berichterstatter und Arbeitsgruppen der UN-Menschenrechtskommission. Ihr Beitrag zur Fortentwicklung des internationalen Menschenrechtsschutzes (Springer 2000). 9 See e.g. TC van Boven, ‘Political and “Legal” Control Mechanisms: Their Competition and Coexistence’ in A Eide and B Hagtvet (eds), Human Rights in Perspective. A Global Assessment (Blackwell 1992) 36; MJ Bossuyt, ‘The Development of Special Procedures of the United Nations Commission on Human Rights’ (1985) 6 hrlj 179; A Cassese, ‘The Admissibility of Communications to the United Nations on Human Rights Violations’ (1972) hrj 375; Cook (n 5); F Ermacora, ‘Procedure to Deal with Human Rights Violations: A Hopeful Start in the United Nations?’ (1974) hrj 670; C Escobar-Hernández, ‘Algunas consideraciones críticas sobre los mecanimsos extracovencionales de control establecidos por la Comisión de Derechos Humanos de las Naciones Unidas’ in Hacia una Justicia Universal (Comisión Internacional de Juristas 1993) 47; MF Ize-Charrin, ‘Procediminetos relativos a violaciones de los derechos humanos en el escenario internacional’ (1986) xxvi Foro Internacional 453; Jernow (n 5); F  Newman, ‘The New un Procedures for Human Rights Complaints: Reform, Status Quo, or Chamber of Horrors?’ (1974) 34 Annales de Droit 129; JA Pastor Ridruejo, ‘Les procédures publique spéciales de la Commission de Droits de l’Homme des Nations Unies’ (1991) 228 rcadi 183; J Rhenán Segura, ‘Los procedimientos extracovencionales de las Naciones Unidas en material de derechos humanos. Los Relatores Especiales: un intento de definicón’ in L González Volio (ed), Presente y Futuro de los Derechos Humanos: Ensayos en Honor a Fernando Volio-Jiménez (Instituto Interamericano de Derechos Humanos 1998) 318; N Rodley, ‘United Nations Non-Treaty Procedures for Dealing with Human Rights Violations’ in H Hannum (ed), Guide to International Human Rights Practice (3rd edn, Transnational Publishers & Procedural Aspects of International Law Institute 1999) 61–84; N Rodley, ‘United Nations Human Rights Treaty Bodies and Special Procedures of the Commission on Human Rights. Complementary or Competition?’ (2003) 25 hrq 882; LS Sunga, ‘The Special Procedures of the un Commission on Human Rights’ in G Alfredson and others (eds), International Human Rights Monitoring Mechanisms. Essays in Honour of Jacob TH Möller (Martinus Nijhoff Publishers 2001) 233; ME Tardu, ‘Human Rights Complaint Procedures of the United Nations: Assessment and Prospects’ in X Jerewitz (eds), Des Menschen Recht zwischen Freiheit und Veratwortung. Festchrift für Josef Partsch zum 75. Geburtstag (Duncker & Humblot 1989); ME Tardu, ‘United Nations Response to Gross Violations of Human Rights’ (1980) 20 Santa Clara L Rev 559.

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rights by States. The shortage of literature reflects two different difficulties inherent to the birth and evolution of Special Procedures. It took many years for Special Procedures to find their own identity within the un human rights machinery and therefore many of the first publications addressed the work of the Commission as a whole rather than ‘Special Procedures’. Once they became well established, the lack of coherence in their creation and implementation of methods of work – two features of their evolution examined below, made it progressively difficult to study them as a single category. As a result, when Special Procedures attracted the attention of scholars, they would, for the most part, be tackled selectively, with the most attention being given to thematic mandates10 focussing on ‘traditional’ civil and political rights.11 The scarcity of literature has been partially addressed in recent years, in what seems to be a positive collateral effect of the creation of the Human Rights Council in 2006. The published outputs released by some nongovernmental organisations, such as the International Service for Human Rights, have facilitated research on Special Procedures and other Charter-based 10

11

The limited literature addressing geographic mandates includes MJ Bossuyt, ‘La Commission des Nations Unies des Droits de l’Homme et la crise en Afrique Centrale’ (1998) 75 Rev Dr Intern & Comp 103; M Nowak, ‘Country-Oriented Human Rights protection by the un Commission on Human Rights and its Subcommission’ (1991) xxii nyil 39; JA Pastor Ridruejo, ‘La función del Relator Especial de la Comisión de Derechos Humanos de la onu en el caso de El Salvador’ (1985) 2 Revista del Instituto Interamericano de Derechos Humanos 5. See e.g. TC van Boven, ‘Facing Urgent Human Rights Cases: Legal and Diplomatic Action’ in R Lawson and M de Blois (eds), The Dynamics of the Protection of Human Rights in Europe: Essays in Honour of Henry G Schermers, vol 3 (Martinus Nijhoff 1994) 61; C EscobarHernández, ‘Un Nuevo paso en la protección internacional de la libertad de pensamiento, conciencia y religión: el procedimiento publico especial de la Comisión de Derechos Humanos’ (1990) vi Anuario de Derecho Eclesiástico del Estado 87; O de Frouville, Les procédures thématiques: une contribution efficace des Nations Unies à la protection des droits de l’homme (Pedone 1996); MT Kamminga, ‘The thematic procedures of the un Commission on Human Rights’ (1987) xxxiv nilr 299; P Kooijmans, ‘The Role and Action of the un Special Rapporteur on Torture’ in A Cassese (ed), La Lutte International contre la Torture (Nomos Verlagsgesellschaft 1991) 56; N Rodley, ‘United Nations Action Procedures against “Disappearances”, Summary or Arbitrary Executions and Torture’ (1986) 8 hrq 700; B  ­Rudolf, ‘The Thematic Rapporteurs and Working Groups of the United Nations Commission on Human Rights’ (2000) 4 Max Planck yb un L 289; B Schäfer, ‘The United Nations’ Struggle against Racism and Racial Discrimination: The Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance’ in Papers in the Theory and Practice of Human Rights (Human Rights Centre: University of Essex 2001) 33.

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­bodies by following and producing summaries of the colossal number of reports and Special Rapporteurs’ work during (and outside) the sessions of the Human Rights Council and the General Assembly.12 Nonetheless, most of the published research deals with specific mandates13 – or certain aspects of their methods of work – rather than representing the full range of mechanisms and activities falling under the umbrella of Special Procedures.14 This chapter explores in detail the factors leading to the creation of Special Procedures and their subsequent transition from ‘exceptional’/ad hoc (and therefore ‘special’) mechanisms born from a specific political conjuncture, to their contemporary characterisation as a ‘system’. Many of the challenges faced by these human rights bodies remain linked to the misalliance between their conception in origin and their organic growth. The lack of clear legal 12 13

14

See e.g. the International Service of Human Rights: Human Rights Monitor, accessed 4 April 2016. See e.g. P Alston, JM Foster and W Abresch, ‘The Competence of the un Human Rights Council and its Special Procedures in relation to Armed Conflicts: Extrajudicial Executions in the “War on Terror”’ (2008) 19 ejil 183; M Kirby, ‘un Special Procedures: Reflections on the office of un special representative for human rights in Cambodia’ (2010) 11 Melb J Int’l L 491; L Smyth, ‘Country-Specific Mandate-Holders: The Role of the Special Rapporteur on the Situation of Human Rights in Cambodia’ (2014) 15 Melb J Int’l L 155. See e.g. P Alston, ‘Hobbling the Monitors: Should the un Human Rights Monitors be Accountable?’ (2011) 52 Harv Int’l L J 561; I Biglino, C Golay and I Truscan, ‘The Contribution of the un Special Procedures to the Human Rights and Dialogue’ (2012) 9 Sur Int’l J hr 15; C Breen, ‘Revitalising the United Nations Human Rights Special Procedures Mechanisms as a Means of Achieving and Maintaining International Peace and Security’ (2008) 12 Max Planck yb un L 177; E Domínguez-Redondo, ‘Human Rights Through the Backdoor: Contribution of Special Procedures to the Normative Development of International Human Rights Law’ in C Buckley, A Donald and P Leach (eds), Towards Coherence in International Human Rights Law: Approaches of Regional and International Systems (Brill/Nijhoff 2016 forthcoming); E Domínguez-Redondo, ‘Rethinking the Legal Foundations of Control in International Human Rights Law: The case of Special Procedures’ (2011) 29 nqhr 261; J Gutter, ‘Special Procedures and the Human Rights Council: achievements and challenges ahead’ (2007) 7 hrlr 93; H Hannum, ‘Reforming the Special Procedures and Mechanisms of the Commission on Human Rights’ (2007) 7 hrlr 73; J Naples-Mitchell, ‘Perspectives of un Special Rapporteurs on their Role: Inherent Tensions and Unique Contributions to Human Rights’ (2011) 15 ijhr 232; I Nifosi, The un Special Procedures in the Field of Human Rights (Intersentia 2005); T Piccone, Catalysts for Change: How the un’s Independent Experts Promote Human Rights (Brookings Institute Press 2012); B Ramcharan, The Protection Roles of un Human Rights Special Procedures (Martinus Nijhoff 2008); N Rodley, ‘On the Responsibility of Special Rapporteurs’ (2011) 15 ijhr 319.

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17

f­ ramework governing their operations and status has allowed mandate holders to develop innovative methods of work. However, Special Procedures remain more exposed to geopolitical factors than other human rights monitoring bodies composed of independent experts. The decisions about the creation of Special Procedures, the renewal of mandates, the selection of individuals to serve in these roles, and reactions to Special Procedures findings and conclusions are made within a governmental body. This ensures the political relevance of their activities but also their vulnerability within the United Nations system.15 Section ii of the chapter explains the geopolitical coordinates under which the Commission on Human Rights decided its own competence to address situations of human rights violations in 1967. By exercising this new power, the Commission used subsidiary ad hoc bodies to assist in dealing with the situation of gross and systematic violations in specific territories. As explained below, the expansion of territories under study by ad hoc bodies and their utilisation by the Commission to also address phenomena of violations of human rights worldwide resulted in the bulky apparatus of mechanisms known as ‘Special Procedures’. Section iii elaborates on the consequences of this unintended result, in terms of working methods and the institutional position of Special Procedures. These have evolved without the will of States, but on the basis of decisions adopted by simple majority by an intergovernmental body particularly sensitive to political conjunctures. The absence of uniformity and clear terms of reference in the resolutions creating or renewing mandates has determined that Special Procedures mandate holders have enjoyed autonomy and flexibility in developing methods of work. Nevertheless, it is possible to outline the main trends and features common to Special Procedures’ working methods. It will be concluded that, through the implementation of their mandates and the efforts to coordinate activities, Special Procedures have become a distinct category, defining themselves as ‘a system’ with distinct institutional structures supporting their work. The ‘system’ of Special Procedures still lacks coherence. One of the uncertainties regarding their future concerns whether or not a more uniform, coherent approach will prove beneficial; or whether as history shows, their main strength remains the flexibility and autonomy they have enjoyed in the past.

15

On the politicisation of the decisions leading to the creation, modification and termination of mandates, see the overview in Lempinen (n 8). See also R Freedman, ‘The United Nations Human Rights Council: More of the Same?’ (2013) 31 Wis Int’l lj 209.

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An Unintended Result: ‘Fact-finding missions’ as the First Special Procedures

It is difficult to summarise the events leading to the creation of Special Procedures because, when the first mechanisms we now call ‘Special Procedures’ were created, State Members of the Commission on Human Rights did not intend to create a new category of human rights mechanisms. The human rights bodies, now understood as the first Special Procedures, were portrayed as ‘fact-finding’ missions by the scholarship at the time,16 or as ‘1235 procedure’ – a terminology that has taken a long time to disappear despite its uncertain meaning.17 It took 20 years for the Commission on Human Rights to broaden its scope of actions vis-à-vis human rights violations, and another decade to confirm it had competence to establish monitoring mechanisms to investigate situations of gross violations of human rights. The history of Special Procedures is, for the most part, the history of the creation of each mandate, at least until the mandate holders and the Secretariat supporting their activities started coordinating their work and treating them as a distinct category. This section will outline the events leading to the birth of the first public and confidential Special Procedures to highlight the unexpected positive outcomes of highly politicised processes. Among the many achievements of the erstwhile Commission on Human Rights, Special Procedures are its most important legacy. A Competence for Addressing Human Rights Violations (1947–67) The idea that human beings deserve special legal protection lies at the foundation of the modern conception of the system of promotion and protection of human rights at the domestic, regional and universal levels. It is therefore unsurprising that the creation of human rights mechanisms has been accompanied by claims to widen access to their jurisdiction to the subjects it is meant

16

17

See e.g. R Miller, ‘United-Nations Fact-Finding Missions in the Field of Human Rights’ (1970–73) Aus ybil 40; SB Kaufman, ‘The necessity for rules of procedure in ad hoc United Nations Investigations’ (1969) 18 Am U L Rev 739; E Schwelb and P Alston, ‘The Principal Institutions and Other Bodies Founded Under the Charter’ in K Vasak (ed), The International Dimensions of Human Rights (unesco 1982) 231, 295. The terminology ‘1235 procedure’ was used to refer to all mechanisms created by the un Commission on the basis of the competence contained in un Economic and Social Council (ecosoc) Res 1235 (xlii) (6 June1967) un Doc E/4393 and distinguishing between ‘public general procedures’ and ‘public Special Procedures’: see e.g. Pastor Ridruejo(n 9) 209; H Steiner and P Alston, International Human Rights in Context: Law, Politics, Morals. Text and Materials (2nd edn, oup 2000) 620–23.

History of the Special Procedures

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to serve: the individual rights-bearers. Nonetheless, it took a long time for the United Nations to open its apparatus to individuals. In 1947, the Economic and Social Council (ecosoc) endorsed the view of the Commission of Human Rights by which the Commission declared that it had ‘no power to take any action in regard to any complaints concerning human rights’.18 This was perceived as a regression in comparison to the minority petitions system established by the League of Nations19 as it denied a right of petition to individuals deriving from the un Charter.20 The ecosoc was also contradicting itself; a year earlier it had endorsed the view that the Commission’s role was to: (…) assist the appropriate organs of the United Nations in the task defined for the General Assembly and the Economic and Social Council in Articles 13, 55, and 62 of the Charter, and that it might aid the Security Council in the task entrusted to it by Article 39 of the Charter, by pointing to cases where violation of human rights may constitute a threat to the peace.21 Within the United Nations, the only individual complaint procedure in force established under the authority of the un Charter (article 87) was the one operated by the Trusteeship System,22 the successor to the Mandate system under 18 See unchr ‘Report to the Economic and Social Council on the First Session of the Commission held at Lake Success, New York, from 27 January to 10 February 1947’ (1947) un Doc E/259 (Supp), para 22; ecosoc Res 75 (v) (5 August 1947) un Doc E/RES/75 (v). 19 Tardu (n 9) 287–88. 20 H Lauterpacht, International Law and Human Rights (Praeger 1950) 177–88. See also JW Bruegel, ‘The Right to Petition an International Authority’ (1953) 2 iclq 542. 21 See unchr ‘Report of the Commission on Human Rights to the 2nd session of the Economic and Social Council’ (17 May 1946) un Doc E/38, 228; and (21 May 1946) un Doc E/38/Rev.1, 408 (emphasis added). See also NJ Fareed, The United Nations Commission on Human Rights and its work for Human Rights and Fundamental Freedoms (Doctoral Dissertation, Washington State University 1979) 82–83. 22 The International Trusteeship System, operated by the Trusteeship Council – a main organ of the United Nations – was established by Chapter xii of the un Charter to oversee Trust Territories with the objective of supervising their administration by responsible States and to promote their development towards self-determination. According to art 77 of the Charter, the Trusteeship System applied to: (a) territories held under Mandates established by the League of Nations after the First World War; (b) territories detached from ‘enemy States’ as a result of the Second World War; and (c) territories voluntarily placed under the System by States responsible for their administration. After the 11 Trust

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the League of Nations.23 From 1961, the Committee of the 24 (Decolonization Committee) monitored the situation of human rights in non-self-governing territories using individuals as sources of information. The Special Committee on Apartheid, established in 1962 by the General Assembly, also dealt with petitions.24 The individuals benefiting from access to these two international mechanisms were very limited.25 The Economic and Social Council Resolution 75 (v), declaring a lack of competence to deal with allegations of human rights violations, established a symbolic procedure to process the thousands of communications by individuals concerning alleged violations of human rights reaching the Secretariat since the creation of the United Nations.26 Following several amendments, a procedure to handle communications was established by Economic and ­Social Council Resolution 728 F (xxviii) of 30 July 1959.27 Defined by John Territories under this system realised their right to self-determination, the Trusteeship Council terminated its operations in November 1994. 23 For historic precedents of the right to petition internationally prior and during the League of Nations’ period, see DP Parson, ‘The Individual Right of Petition: A Study of Methods Used by International Organizations to Utilize the Individual as a Source of Information on the Violations of Human Rights’ (1966–67) 13 Wayne L R 678, 678–88. 24 See unga Res 1761 (xvii) ‘The Policies of apartheid of the Government of the Republic of South Africa’ (6 November 1962), operative para 5. 25 See J Carey, ‘The United Nations’ Double Standards on Human Rights Complaints’ (1996) 60 ajil 792; N Rodley, ‘Monitoring Human Rights by the un System and Nongovernmental Organizations’ in DP Kommers and G Loescher (eds), Human Rights and American Foreign Policy (University of Notre Damme Press 1979) 157, 161–62. 26 The scattered data available is not very helpful in gaining an insight into the number of communications received by the Secretariat. For instance, the Commission on Human Rights states that over 25,000 communications were referred to it between 3 April 1951 and 7 May 1952, compared to 2,118 communications received during the period from 7 May 1952 to 7 March 1953 (‘Commission on Human Rights Report of the Ninth Session, 7 April–30 May 1953’ (6 June 1953) un Doc E/2447-E/CN.4/689, para 293). 27 See ‘Resolutions: Economic and Social Council Official Records, 28th Session, 30 June–31 July 1959’ (1959) un Doc E/3290, 19. The resolution consolidates in one document minor amendments introduced to ecosoc Resolution 75(V) (n 18). The amendments can be found in ecosoc Res 116 A (vi) (1 March 1948), ‘Resolutions adopted by the Economic and Social Council during its 6th Session from 2 February to 11 March 1948’ (12 March 1948) un Doc E/777; ecosoc Res 192 A(VIII) (9 February 1949), ‘Resolutions: Official Records of the 8th Session of the Economic and Social Council, 7 February–18 March 1949’ (15 March 1949) un Doc E/1310; ecosoc Res 454 (xiv) (28 July 1952), ‘Resolutions: Official Records of the Economic and Social Council 14th Session, 20 May–1 August 1952’ (31 December 1952) un Doc E/2332. See also proposals to modify the procedure contained in ‘Report of the ad hoc Committee on Communications: Commission on Human Rights, 2nd

History of the Special Procedures

21

­ umphrey, the then Director of the United Nations Division on Human Rights, H as ‘the most elaborate wastepaper basket ever intended’,28 the Secretariat compiled a public list of communications dealing with human rights ‘principles’ and a confidential summary of communications concerning human rights violations.29 States concerned received a copy of the human rights communications and were provided the opportunity to reply. The authors of human rights communications were informed that their communication was to be handled in accordance with this procedure, with a reminder that the Commission had no power to take any action in regard to any complaint concerning human rights.30 At the end of each session the Commission took note of the receipt of the compiled lists of communications and restated its non-action position, Session’ (14 December 1947) un Doc E/CN.4/64-E/600 Supp Nos 6, 7 and 8; ‘Report of the Session of the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, Lake Success, ny 13 June to 27 June 1949’ (29 June1949) un Doc E/CN.4/351E/CN.4/SUB.2/78 and Corr 1 and 2, paras 26–32; ‘Report of the 3rd Session of the SubCommission on the Prevention of Discrimination and the Protection of Minorities, Lake Success, ny, 9 to 27 January 1959’ (30 January 1950) un Doc E/CN.4/358-E/CN.4/SUB.2/119, paras 17–21; ‘Communications: Memorandum by the Secretary General’ (14 March 1950) un Doc E/CN.4/361. 28 JP Humphrey, Human Rights and the United Nations: A Great Adventure (Transnational Publishers 1984) 28. 29 See un Doc E/259 (supp) (n 18) paras 21 and 23; ecosoc Res 75 (v) (n 18). See also unchr ‘Report of the Sub-Committee on the Handling of Communications’ (5 February 1947) un Doc E/CN.4/14/Rev.1; unchr ‘Report of the Sub-Committee on the Handling of Communications 1 February 1946’ (6 February 1947) un Doc E/CN.4/14/Rev.2, paras 2 and 5. 30 See ecosoc Res 728 F (xxviii) (30 July 1959), which consolidates minor amendments to ecosoc Res 75 (v) (n 18) introduced by ecosoc Res 116 A (vi) (1 March 1948) un Doc E/777 (n 27); ecosoc Res 112 A (vi) [on these amendments, see also suggestions by the ad hoc Committee on Communications in un Doc E/CN.4/64-E/600 Supp No 6 (14 ­December 1947) 7–8; and suggestions of the Sub-Commission concerning its own role in the study of communications in un Doc E/CN.4/351 (n 27); un Doc E/CN.4/358 (n 27); un Doc E/CN.4/361 (n 27)]; ecosoc Res 192 A (viii) (9 February 1949) un Doc E/1310 (n 27). See also ‘Report of the 3rd Session of the Commission on Human Rights, Lake Success, ny, 24 May to 18 June 1948’ (28 June 1948) un Doc E/800; ecosoc Res 275 B (x) (17 February 1950), ‘Resolutions: Economic and Social Council Official Records, 5th year, 10th session, 7 February–6 March 1959’ (18 April 1950) un Doc E/1661; ‘Report of the 5th Session of the Commission on Human Rights to the Economic and Social Council, Lake Success, ny, 9 May–20 June 1949’ (1949) un Doc E/1371(SUPP)-E/CN.4/350, 12–13. In addition, ecosoc Resolution 728 F (xxviii) puts an end to the distinction between State Members of the Commission and non-State Members regarding the receipt of a copy of the communications [formerly established by paragraph (e) of ecosoc Res 75 (v) (n 18); and ecosoc Res 454 (xiv) (28 July 1952)].

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until 1959, when this formality was dropped.31 This way of circulating communications became the basis of the confidential ‘1503 procedure’ (pertaining to the number of the ecosoc resolution creating it) established in 1970 as explained below.32 The 1503 procedure was reformed in 200033 and, following the creation of the Human Rights Council in 2007, was replaced by the ‘complaint procedure’.34 In 1967, the Commission on Human Rights changed its ‘no power’ stance towards human rights violations. Geopolitical factors were decisive in making this earlier approach unsustainable. The decolonisation process dramatically changed the composition of the United Nations: between 1945 and 1960, more than 40 countries and 800 million persons (a quarter of the inhabitants of the planet) achieved independence.35 By 1967, 57 per cent of the 127 un Member States were Asian and African States.36 The new ‘Third-World’ majority at the un supported the creation of human rights monitoring mechanisms to avoid the risk of their marginalisation as second-rate countries with consequent reduction of foreign aid.37 Between 1960 and 1963, the General Assembly created a Special Committee to monitor the implementation of the Declaration of Independence to Colonial Countries and Peoples38 with competence to carry out

31

‘(…) but would continue to mention it in its report to the Economic and Social Council that the list and the replies have been circulated by the Secretary-General and received by the members of the Commission, as has been done heretofore in the opening paragraph of the chapter dealing with communications in its report to the Economic and Social Council’: ecosoc Res 15 (xv) (8 April 1959). See also ‘Methods Used by the United Nations in the Field of Human Rights’ (1967) un Doc A/CONF.32/6. 32 ecosoc Res 1503 (xlviii) (27 May 1970). 33 ecosoc Res 2000/3 ‘Procedure for dealing with communications concerning human rights’ (16 June 2000) un Doc A/RES/2000/3. 34 See un Human Rights Council (unhrc) Res 5/1 ‘Institution-Building of the United Nations Human Rights Council’ (18 June 2007) un Doc A/HRC/RES/5/1. 35 R Aracil, J Oliver and A Segura, El mundo actual: De la Segunda Guerra Mundial a nuestros días (2nd edn, Universitat de Barcelona 1998) 123; MJ Peterson, ‘General Assembly’ in TG Weiss and S Daws (eds), The Oxford Handbook on the United Nations (oup 2007) 97, 106–09. 36 On the impact of the new un memberships on the composition of the Commission on Human Rights, see Fareed (n 21) 71–76. 37 Tardu (n 9) 287–314. See also S Chesterman, TM Franck and DM Malone, Law and Practice of the United Nations (oup 2008) 457–58. 38 unga Res 1514 (xv) ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’ (14 September 1960) (adopted by 89 votes to none, 9 abstentions).

History of the Special Procedures

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its task by employment of all available means;39 it commissioned the second ever un fact-finding mission40 in South Vietnam in connection with the allegation of human rights violations of the Buddhist community,41 and designated a Special Committee on the Apartheid Policies of the Government of South Africa.42 The first ‘treaty bodies’ also made their appearance during these years, with the adoption of the two 1966 Covenants and the 1965 Convention on the Elimination of All Forms of Racial Discrimination. The Commission’s self-denied competence to deal with human rights violations was at odds with other un bodies, particularly taking into account its role as the main un human rights institution. The unanimous condemnation of apartheid should be considered the decisive instigator of the creation of a fact-finding mission, which set the basis for the first ‘Special Procedure’. The Chairman of the General Assembly’s Special Committee on the Policies of Apartheid of the Government of South Africa called upon the Commission on Human Rights, on 3 February 1947, to carry out an international investigation of charges of torture and ill-treatment in South African prisons of prisoners and other persons in police custody.43 Acceding to this request required the Commission to claim competence for such action, overturning its 20-year denial of such powers. In March 1967 the Commission appointed an Ad Hoc Working Group of Experts on the Situation of Human Rights in Southern Africa44 and a Special 39

40

41 42

43 44

unga Res 1654 (xvi) ‘The Situation with Regard to the Implementation of the Declaration on Granting of Independence to Colonial Countries and Peoples’ (27 November 1961) para 5. The first one was established by ecosoc Res 350 (xii) (17 March 1951) to investigate the question of forced labour as a means of political coercion or punishment for holding or expressing political views. Its final report can be found in ‘Report of the ad hoc Committee on Forced Labour’ (1953) un Doc E/2431, paras 7–547. See ‘Report of the United Nations Fact-Finding Mission to South Viet-Nam’ (7 December 1963) un Doc A/5630. For the precedents of this Mission, see Kaufman (n 16) 752–55. unga Res 1761 (xvii) (6 November 1962). See TC van Boven, ‘Chartering New Grounds in Human Rights’ in F Coomans and others (eds), Human Rights from Exclusion to Inclusion: Principles and Practice: An Anthology from the Work of Theo van Boven (Kluwer Law I­ nternational 2000) 5; RB Ballinger, ‘un Action on Human Rights in South Africa’ in E ­Luard (ed), The International Protection of Human Rights (Thames and Hudson 1967) 248, especially 257–66. See R Miller, ‘United-Nations Fact-Finding Missions in the Field of Human Rights’ ­(1970–73) Aus ybil 40. unchr Res 2 (xxiii) (6 March 1967).

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Rapporteur on the Politics of Apartheid.45 The Commission also sought authorisation from its parent body, the Economic and Social Council, to deal with human rights violations in the future.46 The authorisation became effective that same year with the adoption of Economic and Social Council Resolution 1235 (xlii). The text of Resolution 1235 (xlii) restricted the sources of information available to the Commission to those contained in the communications listed by the Secretary General pursuant to Economic and Social Council Resolution 728 F (xxviii) of 30 July 1959. However, a particular reading of the 1235 Resolution in conjunction with others approved formerly by the Commission on Human Rights, the General Assembly and the Economic and Social Council, as well as the public nature of the annual sessions of the Commission on Human Rights, privileged an interpretation according to which the Commission on Human Rights (and the former Sub-Commission for the Promotion and Protection of Minorities) was authorised to use all sources of information to investigate situations of human rights violations.47 Although contested and the object of several legal analyses within the un, this interpretation prevailed and was decisive in terms of the birth of two different procedures, one public and one confidential, to deal with allegations of human rights violations: the so-called ‘1235’ and ‘1503’ Procedures. The information included in the list prepared according to Resolution 728 F (xxviii) was processed within the framework of the so-called 1503 Procedure. The 1503 Procedure became ‘the first procedure within the framework of the United Nations under which private individuals and non-governments [could] raise complaints about violations of human rights within a State and [have] those complaints investigated and reported upon by an impartial international body’.48 All the other sources of information became the object of public scrutiny, either in the context of the 45 unchr Res 7 (xxiii) (16 March 1967). 46 See unchr Res 8 (xxiii) and 9 (xxiii) (both 16 March 1967). See also ecosoc Res 1102 (xl) (4 March 1966); ecosoc Res 1164 (xli) (5 August 1966); unga Res 2144 (xxi) (26 ­October 1966) determining the change of direction of the Commission. Former proposals can be found in reports of the Commission on Human Rights on its annual sessions of 1962 (un Doc E/3616/Rev.1-E/CN.4/832/Rev.1); 1963 (un Doc E/3743-E/CN.4/857); 1964 (un Doc E/3873-E/CN.4/874) and 1966 (un Doc E/4184-E/CN.4/916). On the competence of the Commission to establish monitoring bodies without waiting for previous authorisation, see Escobar-Hernández (n 8) 366–71. 47 See BG Ramcharan, The Concept and Present Status of the International Protection of Human Rights: Forty Years after the Declaration (Martinus Nijhoff 1989) 65–70. See also TC van Boven, ‘The United Nations Commission on Human Rights and Violations of Human Rights and Fundamental Freedoms’ (1968) 15 nilr 379, 380–82. 48 Cassese (n 9).

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(public) annual sessions of the Commission on Human Rights or under what became known as the system of Special Procedures.49 Early accounts of the approval of Resolutions 1235 (xlii) and 1503 reflected an understanding that communications could only be dealt with under the confidentiality of the 1503 Procedure. In the words of Howard Tolley: The unintended result was the creation of two procedures for considering violations – one public under Resolution 1235, without benefit of the communications, and a separate, confidential procedure for reviewing communications.50 The methods of work developed by mandate holders51 concerning individual cases made it clear that both the confidential and public mechanisms depended on the Commission on Human Rights’ competence to deal with communications. The scope of the 1503 Procedure was universal in terms of countries and rights covered by it. Admissibility criteria to submit a complaint were framed by the then Sub-Commission for the Prevention of Discrimination and the Protection of Minorities Resolution 1 (xxiv) of 1971. The reformation of the 1503 Procedure in 2000 during the general period of reform of the un human rights mechanisms included renaming it the ‘complaint procedure’ in 2007,52 while retaining its original objective: to reveal a consistent pattern of gross and reliably attested violations of human rights. Thus while the mechanism is nourished by individual complaints, it does not seek to redress individual cases but rather to address patterns of violations, in cooperation with the State concerned, with the confidentiality of the procedure meant to facilitate cooperation. A possible outcome of this procedure is the creation of new Special Procedures, as explained below.53

49

50

51 52 53

A detailed account of the circumstances leading to this result can be found in E Domínguez-­Redondo, ‘La Comisión de Derechos Humanos a Debate: El Procedimiento 1503’ (2006) 2 Revista Iberoamericana de Derechos Humanos 35. H Tolley, ‘The Concealed Crack in the Citadel: The United Nations Commission on Human Rights’ Response to Confidential Communications’ (1984) 6 hrq 420, 429 (emphasis added). See also T Gonzáles, ‘The Political Sources of Procedural Debates in the United Nations: Structural Impediments to Implementation of Human Rights’ (1981) 13 nyu J Int’l L 427. See below Section iii regarding competence and working methods developed by mandate holders to deal with communications. ecosoc Res 2000/3 (n 33); unhrc Res 5/1 (n 34). See Section II.D.

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B The First Geographic Mandates In March 1969 the Commission established its second ‘fact-finding’ mission, this time to investigate human rights allegations concerning Israel’s violation of the 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War, in the occupied territories resulting from the 1967 ‘Six Day War’.54 The creation of this mechanism was connected to difficulties faced in nominating members of the General Assembly Committee to Investigate Israel Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories.55 Once the Committee became operative, the Commission’s Working Group on the same topic ended its mandate. While many describe this body as the ‘second’ Special Procedure created by the Commission, its existence was limited to provisionally replacing a mandate taken over from the General Assembly.56 It was not until 1975 that the Commission addressed another country’s human rights situation, despite attempts made by the former Sub-Commission on Prevention of Discrimination and Protection of Minorities57 to promote the investigation of other territories in 1968.58 Both the investigation on the policy of 54 55

56 57

58

unchr Res 6 (xxv) (4 March 1969). unga Res 2443 (xxiii) (19 December 1968). On the circumstances preventing the appointment of the members of the Committee, see K Herndl, ‘Recent Developments concerning United Nations Fact-finding in the field of human rights’ in M Nowak, D Sterurer and H Tretter (eds), Progress in the Spirit of Human Rights: Festschrift für Felix Ermacora (Engel 1988) 1, 11. See e.g. Lempinen (n 8) 139–44; Nifosi (n 6) 15; M Limon and H Power, History of the United Nations Special Procedures Mechanism (Universal Rights Group 2014) 6. The Sub-Commission was established in 1974 (un Doc E/259 (n 18) paras 18–20). Composed by 12 expert members, it was expanded to 14 in 1959 (ecosoc Res 728 E (xxviii) (30 July 1959)), 18 in 1966 (ecosoc Res 1074G (xxxix) (28 July 1965)), and 26 in 1969 ­(ecosoc Res 1334 (xliv) (31 May 1968)). It was renamed the Sub-Commission for the Promotion and Protection of Human Rights in 1999 (ecosoc Res 1999/256 (27 July 1999)). The ‘rebel child’ of the Commission was replaced by an Advisory Committee with the creation of the Human Rights Council. On its mandate and influence in the creation and evolution of Special Procedures, see A Eide, ‘The Sub-Commission on Prevention on the Elimination of Racial Discrimination’ in P Alston (ed), The United Nations and Human Rights: A Critical Appraisal (Clarendon Press 1992) 211. The Sub-Commission tabled proposals for investigations regarding Greece and Haiti, which was not welcomed by the Commission. See ‘Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities to the Commission on Human Rights, Geneva, 25 September–12 October 1967’ (4 December 1967) un Doc E/CN.4/947E/CN.4/Sub.2/286, 32–41, in particular Sub-Commission Res 3 (xx) (6 October 1967). On discussions concerning the powers of the Sub-Commission to recommend actions,

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apartheid and the occupied Arab territories had been the object of worldwide condemnation, actions by the Security Council and the General A ­ ssembly, and were relatively easy to justify as not pertaining to the domestic affairs of a State by their own nature and, therefore, not in open conflict with article 2.7 of the un Charter.59 This explains the lack of resistance enjoyed by the Commission when it decided create the mandates on southern Africa without waiting for confirmation of its competence to investigate human rights violations. It is also reflected, in sharp contrast with the highly controversial discussions that have followed the birth and life of every other geographic mandate since, the almost unanimous political support enjoyed by the Commission in relation to decisions addressing this territory, including the designation of a separate point in its agenda or the two-year extension of its mandate in 1969.60 The Commission’s decision to create a Working Group on the Situation of Human Rights in Chile in 1975 signalled a radical change of direction.61 While the events leading to its creation were also accompanied by international outcry and were in parallel to other interventions by the un and regional bodies, they could not be ascribed to a question of racist policy or decolonisation, unlike those used as the title of Resolution 1235 (xlii).62 The situation of human rights violations under scrutiny was clearly one traditionally considered within the domestic affairs of a State. The creation of the Working Group resulted in strong contestation by States of the legitimacy of actions decided

59

60 61 62

see ‘Report of the 21st Session of the Sub-Commission on Prevention of Discrimination and Protection of Minorities to the Commission on Human Rights, Geneva, 7–25 O ­ ctober 1968’ (18 November 1968) un Doc E/CN.4/976-E/CN.4/Sub.2/294-E/4475, 58–79. See also P Haver, ‘The United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities’ (1982) 21 Colum J Transnat’l L 103; TJ Farer, ‘The un and Human Rights: More than a Whimper, Less than a Roar’ in A Roberts and B Kingsbury (eds), United Nations, Divided World: The un’s Roles in International Relations (Clarendon Press 1988) 95, 127–31. For more on this point, see e.g. F Ermacora, ‘Human Rights and Domestic Jurisdiction (article 2 paragraph 7 of the Charter)’ (1968) 124 rcadi 451, 406–23; N Rodley, ‘The United Nations and Human Rights in the Middle East’ (1971) 38 Social Research 217; A Cançado Trindade, ‘Co-existence and Co-ordination of Mechanisms of International Protection of Human Rights (at global and regional levels)’ (1987) 202 rcadi 35. With the exception the South African Government, who opposed un actions based on art 2(7) of the un Charter. See Ballinger (n 42) 251–71. unchr Res 8 (xxi) (27 February 1975). See also Sub-Commission Res 8 (xxvii) (21 August 1974); unga Res 3219 (xxix) (6 November 1974). ‘Question of the violation of human rights and fundamental freedoms, including policies of racial discrimination and segregation and of apartheid, in all countries, with particular reference to colonial and other dependent countries and territories’ (n 17).

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by the Commission, and represents the first example of the political confrontations that have accompanied the creation of every country-specific mandate to date, and the calls for their removal from the system.63 In any case, the mandate on Chile opened the door to other geographic mandates and, in the following years, geographic procedures rapidly extended the scope of their actions around the world. The Commission entrusted mandates to the Secretary General on the Situation of Human Rights in Cyprus (1975),64 ­Kampuchea (1978)65 and Nicaragua (1979).66 In 1979, it also decided, for the first time, to use the possibility of public scrutiny – and the appointment of a Special ­Rapporteur – to study the situation of a country that was being investigated at the time under the confidential 1503 Procedure (Equatorial Guinea).67 In 1978, the General Assembly provided the final endorsement needed, settling the Commission’s competence to create geographic mandates. After acknowledging and welcoming the work carried out by the Ad Hoc Working Group on the Situation of Human Rights in Chile, it called upon the Commission to use it as basis for its future actions when dealing with consistent patterns of gross violations of human rights.68 This endorsement of the General Assembly confirming the merits of the Special Procedures as a tool to guide future actions of the Commission came at a crucial time. The adoption of Resolution 1235 (xlii) was facilitated by the absence of any other body able to deal with human rights violations within the un. The approval of Resolution 1503 (xlviii) had already prompted some governments to argue that every situation and communication on human rights violations should follow the confidential route established in 1970.69 After all, 63

64 65 66 67

68 69

On the debate generated over the Chilean mandate, see Gonzáles (n 50). On subsequent attempts to remove country-specific mandates, see E Domínguez-Redondo, ‘un Public Special Procedures under Damocles’ Sword – Two Particular Innovations: Mechanisms for the Appointment of Mandate-holders and the Adoption of a Code of Conduct for Special Procedures Mandate-holders of the Human Rights Council’ (2008) 29 hrlj 32, 35–36. unchr Res 4 (xxxi) (13 February 1975). unchr Res 9 (xxxiv) (8 March 1978). unchr Res 14 (xxxv) (13 March 1979). ecosoc Dec 1979/35 (10 May 1979). A summary of actions addressing the situation in the country can be found in the first report of the Special Rapporteur (unchr ‘Study of the Human Rights Situation in Equatorial Guinea-By Professor Fernando Volio Jimenez, Special Rapporteur, appointed in accordance with Resolution 15 (xxxv) of the Commission on Human Rights’ (12 February 1980) un Doc E/CN.4/1371, paras 5–23). See also below Section II.D. unga Res 33/176 (10 December 1978) un Doc A/RES/33/176. N Rodley, ‘Towards a more effective and integrated system of human rights protection by the United Nations’ (1 April 1993) un Doc A/CONF.157/PC/60/Add.6, para 14.

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such States argued, Resolution 1235 (xlii) only provided competence, not a procedure to deal with human rights violations – and, as seen above, the letter of the resolution seemed to restrict sources to those contained in Resolution 728 F (xxviii).70 The creation of public mandates on southern Africa, and the support for this action prevented such arguments from prospering. However, it was the decision to create the Chilean mandate that ended the discussion on whether or not two routes of dealing with human rights violations – one public, and one confidential – had been created. By 1978 several human rights treaties had entered into force – significantly the two Covenants on Civil and Political Rights and Economic, Social and Cultural Rights – which raised again the question of the necessity of retaining the mechanisms established by the Commission.71 However, by the time this debate was ignited, Special Procedures had been consolidated enough to prevent their removal. C First Thematic Procedures The Commission’s expansion of members in 198072 reinforced the membership of ‘non-aligned’ countries which, contrary to some pessimistic prognosis, facilitated the proliferation of geographic mandates, and contributed to the creation of the first thematic Special Procedures.73 As one of the many remarkable developments witnessed at the time, oral interventions of nongovernmental organisations during the Commission’s sessions would refer to any 70

71

72

73

TC van Boven, ‘United Nations and Human Rights. A Critical Appraisal’ in A Cassese (ed), un Law/Fundamental Rights: Two topics in International Law (Sijthoff Noordhoff 1979) 119, 121–24; Tolley (n 50) 425–29. Although these discussions were generally on the 1503 procedure and attempts to eliminate or reform it. See unchr Res 16 (xxiv) (7 March 1976) and the resulting report by the Secretary General in ‘Analysis of existing United Nations procedures for dealing with communications concerning violations of Human Rights’ (8 February 1978) un Doc E/ CN.4/1317. See also TC van Boven, ‘Creative and Dynamic Strategies for Using United Nations Institutions and Procedures: The Frank Newman Files’ in F Coomans and others (eds), Human Rights from Exclusion to Inclusion: Principles and Practice: An Anthology from the Work of Theo van Boven (Kluwer Law International 2000) 89, 90–95. The Commission was born with 18 members, becoming 21 in 1961, 32 in 1966, 43 in 1979 and 53 in 1992: see ecosoc Res 845 (xxxii) (3 August 1961); ecosoc Res 1979/36 (10 May 1979) un Doc E/1979/36; ecosoc Res 1990/48 (25 May 1990) un Doc E/1990/48. On the pessimist environment of the 1980s session of the Commission, resulting from the extension of members, the invasion of Afghanistan and the Andrei Sakharov case, see International Commission of Jurists, ‘un Commission on Human Rights (Commentaries, 36th session)’ (1980) 24 International Commission of Jurists Review 29–36; H ­Tolley, ‘“Decision-­Making” at the United Nations Commission on Human Rights, 1979–1982’ (1983) 5 Human Rights Quarterly 25.

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country whether or not their study was included in the agenda, facilitating the creation of new geographic procedures.74 Special Procedures rapidly became the main focus of the Commission’s agenda and their reports discussed under a growing number of points in the agenda, consolidating their position in the Organisation. The expansion of territories coming under the scrutiny of the Commission also fuelled tensions in a particularly dark period of the un’s history. Between 1979 and the mid-80s, the un witnessed an intensification of the Cold War confrontation, a proliferation of new categories of armed conflicts to which it was unable to respond, the accusations of application of ‘double standards’ along with allegations of espionage within the Secretariat (exacerbated by the departure of the then Director of the Human Rights Division, Theo van Boven),75 the disagreement on the role of the un when dealing with human rights, and the claim of involvement in war crimes of a former un Secretary General, Kurt Waldheim.76 The translation of these conflicts into the Commission’s negotiations resulted in a historic milestone for the evolution of Special Procedures: the creation of thematic mandates. 74

75

76

The circulation of written statements was restricted by the rules contained in ecosoc Res 1919 (xlviii) (5 May 1975), although they have not been respected in practice. See M Prasad, ‘The Role of Non-Governmental Organizations in the New United Nations Procedures for Human Rights Complaints’ (1975) 5(1) Denver Journal of International Law and Policy 441. Several opinions on the topic were issued by the un Office of Legal Affairs: ‘Circulation of Written Statements: Opinion Dated 28 April, 1977 from the Office of Legal Affairs to the Under-Secretary for Political and General Assembly Affairs’; ‘Principles for the Issuance and Circulation of Written Statements by ngos: Legal Analysis Dated May, 1977’; ‘Oral Statements in the Commission on Human Rights: Legal Analysis (1978)’; ‘Written Statements by Non-Governmental Organizations: Legal Analysis Dated 22 February, 1984’ reproduced in BG Ramcharan (ed), The Principle of Legality in International Human Rights Institutions: Selected Legal Opinions (Martinus Nijhoff 1997) 349–55. See also Rodley (n 69) paras 30–31. The reports surrounding this event are worth reading, for those who are interested in the dark side of the Secretariat and its not-so-independent role: see EG Berman, Bringing a New Life to un Human Operations (United Nations Associations of the United States of America 1998) 12; I Guest, Behind the Disappearances: Argentina’s Dirty War against Human Rights and the United Nations (University of Pennsylvania Press 1990) 80; E ­Luard, The United Nations: How it Works and what it Does (2nd edn, Macmillan 1994) 118–19; H Tolley, The un Commission on Human Rights (Westview Press 1987) 32. A Roberts and B Kingsbury, ‘The un’s Roles in a Divided World’ in A Roberts and B Kingsbury (eds), United Nations, Divided World: The un’s Roles in International Relations ­(Clarendon Press 1988) 1, especially 11–14.

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The situation leading to the creation of the first thematic procedure is well documented, arising in the context of disappearances in Argentina. Under pressure from well-organised civil society, the Commission was compelled to react. The then Director of the Human Rights Division, Theo van Boven, actively supported campaigns led by the International Commission of Jurists and Amnesty International. Several international organisations had adopted measures on the topic, including unesco, the Organization of American States, the 1980 Conference on Women’s Rights and the Sixth un Congress of the United Nations for the prevention of crime and treatment of offenders.77 The General Assembly, the Economic and Social Council and the Sub-Commission all called upon the Commission to address the issue.78 However, the accusations of selectivity in the choice of countries and the diplomatic manoeuvres of the Argentinian Government, then under scrutiny by means of the confidential 1503 procedure, were impossible to overcome in order to reach the necessary votes to create a public geographic mandate.79 A different strategy was then followed and the proposals for a Special Procedure on Argentina were replaced by proposals for the creation of a Working Group to study the phenomenon of disappearances taking place anywhere in the world. The Government targeted was notorious, and the draft resolution circulated to establish the Working Group was known as the ‘Argentinian Resolution’.80 Still, the lack of reference within the text of the resolution to Argentina allowed the adoption of Resolution 20 (xxxvi) of 29 February 1980, by which the Commission decided to appoint, for a year, a Working Group to Examine Questions Relevant to Enforced or Involuntary Disappearances of Persons. A few months later, the SubCommission dared to submit a proposal for a specific mechanism, similar to

77

See e.g. D Kramer and D Weissdbrodt, ‘The 1980 un Commission on Human Rights and the Disappeared’ (1981) 3 hrq 18; H Hannum, ‘Human Rights and the United Nations: Progress at the 1980 un Sub-Commission on Prevention of Discrimination and Protection of Minorities’ (1981) 3 hrq 1. 78 See ecosoc Res 1979/38 (10 May 1979) un Doc E/1979/38; unga Res 33/173 (20 December 1978) un Doc A/RES/33/173; Sub-Commission Res 5 (XXXII)B (5 September 1979) (‘Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its 32nd Session, Geneva, 20 August–7 September 1979’ (3 October 1979) un Doc E/ CN.4/1350-E/CN.4/Sub.2/435). 79 See Guest (n 75); PJ Flood, The Effectiveness of un Human Rights Institutions (Praeger 1998) 50–61. 80 N Rodley, ‘The Evolution of the United Nations Charter-based Machinery of the Protection of Human Rights’ (1997) 1 ehrlr 4, 6.

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habeas corpus, to deal with particularly urgent cases of disappearances.81 The proposal was not approved but inspired future work of the Working Group on Enforced Disappearances. Following this example, many other ad hoc organs (Special Procedures) with thematic mandates were created. Most are still in force although some have changed denomination or composition over the years. The short existence of the Special Rapporteur on Human Rights and Mass Exoduses, created in 1981 for a year and not renewed,82 is an exception among thematic Special Procedures that have otherwise existed indefinitely once established. D Confidential Special Procedures The Human Rights Council can decide, among other measures, to create a ‘Confidential Special Procedure’ by appointing an independent expert to monitor the situation of a State and report back to the Council under the confidentiality of the complaint procedure.83 The Commission on Human Rights created several such confidential Special Procedures before this competence was expressly acknowledged by ecosoc84 and subsequently, by the Human Rights Council.85 For instance, a confidential Special Procedure was created in 2004 to address the Situation of Human Rights in Uzbekistan.86 In 2005, the Commission extended the mandate of the Independent Expert (Michèle Picard) and, after considering her report,87 the newly created Human Rights Council88 decided to discontinue the consideration of the Situation of Human 81

Sub-commission Res 18 (XXXIIl) ‘Question of the human rights of persons subjected to any form of detention or imprisonment’ (11 September 1980) un Doc E/CN.4/-E/CN.4/ Sub.2/459, 75. 82 unchr Res 29 (xxxvii) (31 March 1981). The first and only report of the Special Rapporteur can be found in ‘Study on Human Rights and Massive Exoduses-Sadruddini Aga Khan, Special Rapporteur’ (31 December 1982) un Doc E/CN.4/1503. 83 unhrc Res 5/1 (n 34) para 109(c). 84 ecosoc Res 2000/3 (n 33) para 1. See also unchr Dec 2000/109 (26 April 2000) un Doc E/ CN.4/DEC/2000/109. 85 unhrc Res 5/1 (n 34) para 109(c). 86 See unga ‘Report of the Secretary General on the situation of human rights in Uzbekistan’ (18 October 2006) un Doc A/61/526, para 31. 87 The Independent Expert’s report was examined by the Human Rights Council in September 2006. The Report on the situation of human rights in Uzbekistan (restricted) was circulated as un Doc E/CN.4/2006/WG.16/R.3 (5 January 2006): see United Nations Document Index (Vol 9 No 3, October–December 2006) un Doc ST/LIB/SER.N/34 (Part 2) (United Nations 2008) 1300. 88 The mandate was extended by unhrc Dec 1/102 (30 June 2006) un Doc A/HRC/DEC/1/102 Annex, in the context of the transfer of responsibilities and mandates from the Commission to the Council.

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Rights in Uzbekistan in 2007.89 In 1999, the Commission terminated similar confidential Special Procedures on Chad, Armenia and Azerbaijan.90 Douré M’Bam Diarra (1996) and Emma Aouij (1996–97) were appointed Independent Experts on the Situation of Human Rights in Chad.91 The mandate was terminated in favour of providing advisory services and technical cooperation to the country instead.92 Hugh Templeton was appointed Independent Expert on the Situation of Human Rights in Armenia and Azerbaijan in 199693 but his mandate was short-lived since the Commission decided, the same year, to discontinue consideration of these territories under the 1503 procedure.94 Confidential Special Procedures have also existed, in the past, concerning the Situation of Human Rights in Uganda (1978–81),95 and Haiti (1981–87).96 On several occasions, the Commission requested the Secretary General to designate the expert or to exert his good offices with the government concerned.97 89

unga ‘Report to the General Assembly on the 4th Session of the Human Rights Council’ (12 June 2007) un Doc A/HRC/4/123, paras 119–21. 90 unchr ‘Commission on Human Rights Report on the Fifty-Fifth Session’ (22 March–30 April 1999) un Doc E/1999/23-E/CN.4/1999/167, paras 246–48. 91 See ‘Commission on Human Rights: Report on the 52nd Session, 18 March–26 April 1996’ (1996) un Doc E/1996/23(SUPP)-E/CN.4/1996/177, 286–87; unchr Dec 1996/101 (19 March 1996) un Doc E/CN.4/DEC/1996/101; ‘Commission on Human Rights: Report on the FiftyFourth Session, 16 March–24 April 1998’ (1998) un Doc E/1998/23-E/CN.4/1998/177, paras 419 and 282–83; unchr Dec 1998/101 (17 March 1998) un Doc E/CN.4/DEC/1998/101. See also C Villán Durán, Curso de Derecho Internacional de Los Derechos Humanos (Trotta 2002) 638. 92 unchr Dec 1999/102 (22 April 1999) un Doc E/CN.4/DEC/1999/102. 93 unchr Dec 1996/101 (n 91). 94 un Doc E/1996/23(SUPP)-E/CN.4/1996/177 (n 91) 365, para 382. See also Villán Durán (n 91) 638. 95 This was the first confidential Special Procedure established by the Commission: see unchr ‘Report of the Secretary-General on the Effective Functioning of the Various Mechanisms Established for the Supervision, Investigation and Monitoring of the Implementation of the Treaty Obligations entered into by States in regard to Human Rights and of the Existing International Standards in this Regard’ (14 February 1994) un Doc E/CN.4/1994/42, para 73 and fn 4. On the unsuccessful attempts to make this situation public, see Tardu (n 9) 574–75; Gonzáles (n 50) 457–58; RB Lillich and H Hannum, International Human Rights. Problems of Law, Policy and Practice (3rd edn, Aspen 1995) 16–32. 96 See unchr Res 1987/13 (2 March 1987) un Doc E/CN.4/RES/1987/13, preliminary paragraph 1, referring to the confidential report of the Special Representative of the Commission (1987) un Doc E/CN.4/1987/R.2. On different experts designated for this territory, see America Watch Staff, Reverting to Despotism: Human Rights in Haiti (Human Rights Watch 1990) 137 and 140–41. 97 Until 1997, the Secretary-General would have facilitated direct contact with governments, acting under the 1503 procedure, with Armenia and Azerbaijan (1995); Chad (1994–95

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The confidentiality of the complaint procedure has made it difficult to know whether an independent expert has been appointed to examine a particular territory. The official information available is restricted to public statements made by the Chair of the Human Rights Council regarding the territories examined under this mechanism,98 compiled and published by the ohchr.99 To the author’s knowledge the Human Rights Council has not established any new confidential Special Procedure since its creation in 2006. In some instances, the decision to discontinue reviewing the situation of the State concerned under the confidential procedure in favour of taking up public consideration of the matter has resulted in the creation of new geographic public Special Procedures. Equatorial Guinea (1979) was the first country subjected to this treatment due to its lack of cooperation with the ­Commission.100 An emblematic example of the relationship between the 1503 and 1997); Equatorial Guinea (1977–78); Ethiopia (1979–80); Haiti (1981–83 and 1986); Myanmar (1990–91); Paraguay (1978–90); Somalia (1992); Sudan (1992); Uruguay (1979– 84); and Zaire (1992): see MF Ize-Charrin, ‘1503: A serious Procedure’ in Alfredsson and others (n 9) 293, 304 (fn 7). 98 The result of a confidential agreement, this practice commenced in 1978 and, by 1984, the list expanded to countries no longer examined by the Commission. This practice was later codified by Resolution 2000/3 (n 33) and unhrc 5/1 (n 34). See N Rodley, ‘The Evolution of United Nations Charter based Machinery for the Protection of Human rights’ (1997) 1 ehrlr 4; C Tomuschat, ‘Human Rights in a World-Wide Framework. Some Current Issues’ in Zeitschrift für Ausländisches Öffentliches Recht Und Völkerrecht. Begründet von Viktor Bruns (Kohlhammer 1985) 547, 579–80; P Kooijmans, ‘Introduction to the International Systems of Protection of Human Rights’ (1986) Recueil des Cours. Strasbourg Institut International des Droits de l’Homme 6, 17. 99 See ‘List of situations referred to the Human Rights Council under the Complaint Procedure since 2006’ ohchr, accessed 4 April 2016. However, the confidentiality does not cover nongovernmental organisations and other sources of information. Therefore, non-official – scattered and not always verifiable – i­nformation is available elsewhere: see Ermacora (1974) (n 9) 684; Tolley (1984) (n 50) 442, 446, 448 and 454; Rodley (n 25) 169–70; P Egret, ‘Outcomes of the 1503 and 1235 procedures’ in M  ­Abraham (ed), A New Chapter of Human Rights (International Service for Human Rights and Friedrich Elbert Stifung 2006) Annex 5.1, accessed 4 April 2016. 100 Confidential unchr Dec of 8 March 1979 and unchr Res 15 (xxxv) (13 March 1979), endorsed by ecosoc Dec 1979/35 (n 67). A summary of the confidential decisions undertaken under the 1503 procedure, including a transcription of the confidential decision requesting the creation of a public Special Procedure, can be found in the first and only report of the Special Rapporteur on the situation of human rights in Guinea, un Doc E/ CN.4/1371 (n 67) paras 5–23.

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(now complaint) Procedure and Special Procedures is represented by the manner in which the Commission tackled human rights in Haiti. Following the creation of a confidential Special Procedures to examine Haiti in 1986, the report submitted by the appointed Special Representative was later made public in 1987 by the same resolution deciding the creation of a public Special Procedure.101 Other public Special Procedures, preceded by an examination of the country under the confidential 1503 procedure include: Afghanistan, Liberia, Myanmar, Rwanda, Chile, Democratic Republic of Congo (Zaire), El Salvador, Guatemala, Iran, Somalia, Sudan and Uzbekistan.102 In the lifetime of the Human Rights Council, Eritrea has also become a country examined under a public Special Procedure as an outcome of the complaint procedure.103 Despite numerous voices demanding its elimination104 it has endured for 45 years, revealing state support for its confidential nature, and the belief that States may be in a better position to present their viewpoint without being exposed to public pressure, while remaining under the threat of a public investigation if they do not cooperate with the Special Procedure.105

101 unchr Res 1987/13 (n 96) paras 1 and 11. See also ‘Report on Haiti by the Expert, Mr Philippe Texier, prepared in conformity with Commission on Human Rights resolution 1988/51’ (6 February 1989) un Doc E/CN.4/1989/40, paras 1–14; unga ‘Situation of Human Rights in Haiti: Note by the Secretary General’ (14 October 1994) un Doc A/49/513, paras 1–15. 102 Egret (n 99). 103 See unhrc Res 20/20 (6 July 2012) un Doc A/HRC/RES/20/20; unhrc Res 21/1 (26 September 2012) un Doc A/HRC/RES/21/1. A summary of the situations and outcome of the situations referred to the Human Rights Council under the complaint procedures since 2016 can be found on the ohchr website, accessed 4 April 2016. 104 See e.g. International Commission of Jurists, ‘un Commission on Human Rights’ (1980) 24 International Commission of Jurists Review 29, 34–35; P Alston, ‘Individual Complaints: Historical Perspectives and the International Covenant on Economic, Social and Cultural Rights’ in S Pritchard (ed), Indigenous Peoples, the United Nations and Human Rights (Zed Books Ltd: The Federation Press 1998) 81, 81–83; E Lane, ‘Mass Killing by Governments: Lawful in the World Legal Order?’ (1979) 12 nyu J Int’l L & Pol 239, 268–73; M Nowak, ‘Proposals for Improving the un Human Rights Programme’ (1993) 11 nqhr 153, 156. 105 S Oeter, ‘Inspection in international law. Monitoring compliance and the problem of implementation in international law’ (1997) xxviii nyil 129, 135. See also D Weissbrodt, ‘Protecting the Right to Life: International Measures against Arbitrary or Summary Killings by Goverments’ in B Ramcharan (ed), The Right to Life in International Law (Martinus Nijhoff 1985) 297, 303; E Riedel, ‘Commission on Human Rights’ in R Wolfrum and C Philipp, United Nations: Law, Policies and Practice, vol 1 (Martinus Nijhoff 1995) 116, 124.

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The Legacy of Growing Organically: Trends in Working Methods

This section outlines several salient features determining the evolution of the work carried out by mandate holders of Special Procedures over the years. Their methods of work and support received by the Secretariat have varied from mandate to mandate and from their inception in 1967 until today. Special Procedures were created by resolutions adopted by a political organ and were therefore framed in vague terms. This enabled mandate holders to determine their own working methods, which goes to explaining methodological variations on the part of different Special Procedures. The first individuals appointed to Special Procedures had little in terms of precedents to use as guidelines. The creation of a substantial number of geographic Special Procedures covering territories beyond the ‘unholy trinity’ (Middle East, apartheid and Chile), and the evolution of thematic mandates occurred in a short period of time without the approval of rules to guide their work. Between 1980 and 1987, new thematic Special Rapporteurs were appointed on the issues of summary and arbitrary executions;106 torture;107 religious intolerance,108 and the use of mercenaries as a means of violating human rights and of impeding the exercise of the right of peoples to self-determination.109 During the same period, geographic Special Procedures were entrusted to a Special Representative on El Salvador;110 106 Although following a Commission’s recommendation (unchr Res 1982/29 (11 March 1982) un Doc E/CN.4/RES/1982/29) ecosoc was the organ creating this mandate by means of ecosoc Res 1982/35 (7 May 1982) un Doc E/RES/1982/35. In 1992, the Commission extended the scope of the mandate adding the word ‘extrajudicial’ to the name of this Special Procedure: unchr Res 1992/72 (5 March 1992) un Doc E/CN.4/RES/1992/72. 107 unchr Res 1985/33 (13 March 1985) un Doc E/CN.4/RES/1985/33. On the origin of the mandate, see N Rodley, The Treatment of Prisoners under International Law (2nd edn, Clarendon Press 1999) 18–45 and 134–46. 108 unchr Res 1986/20 (10 March 1986) un Doc E/CN.4/RES/1986/20. Its mandate was different from others at the time, since it was the first one focussed on a specific international instrument, ie the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (unga Res 36/55 (25 November 1981) un Doc A/ RES/36/55). On the background concerning the creation of this Special Procedure, see ‘Implementation of the Declaration of the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief’ (24 December 1986) un Doc E/CN.4/1987/35, paras 1–11. The Special Rapporteur was renamed Special Rapporteur on Freedom of Religion or Belief by unchr Res 2001/42 (23 April 2001) un Doc E/CN.4/RES/2001/42, para 11. 109 unchr Res 1987/16 (9 March 1987) un Doc E/CN.4/RES/1987/16. On the political alliances around the creation of the mandate on religious intolerance and mercenaries – as late symbols of the Cold War – see van Boven (n 9) 45; de Frouville (n 11) 25–27. 110 unchr Res 32 (xxxvii) (11 March 1981).

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a Special Envoy on Bolivia;111 a Special Rapporteur on Guatemala;112 a Representative of the Secretary General on Poland;113 a Special Representative on Iran,114 and a Special Rapporteur on Afghanistan.115 Without rules to guide their operations, mandate holders of Special Procedures designed their working methods from scratch. A Attempts to Codify Model Rules The absence of guidelines to follow by Special Procedures in their operations contrasts with the efforts made to address this gap, affecting many un bodies trusted with human rights mandates. The first attempts to codify general rules applicable to ad hoc bodies of the un entrusted with studies of particular situations alleged to reveal a consistent pattern of violation of human rights, are as old as the Special Procedures. Taking into account the competence contained in ecosoc Resolution 1235 (xlii) and the Commission on Human Rights resolutions appointing the first Ad Hoc Working Groups,116 the 1968 Teheran International Conference on Human Rights recommended the adoption of ‘Model rules for bodies dealing with violations of human rights’.117 The Secretary General suggested a Draft Model in 1970,118 and, in 1974, the Economic and Social Council requested it to be drawn to the attention of all potential fact-finding bodies, although it did not approve or adopt the Draft Model as 111 112 113 114 115

unchr Res 34 (xxxvii) (11 March 1981). unchr Res 1982/31 (11 March 1982) un Doc E/CN.4/RES/1982/31. unchr Res 1982/26 (10 March 1982) un Doc E/CN.4/RES/1982/26. unchr Res 1984/54 (14 March 1984) un Doc E/CN.4/RES/1984/54. It is again the ecosoc, rather than the Commission, the body creating the mandate by ecosoc Res 1984/37 (24 May 1984) un Doc E/RES/1984/37 following the Commission’s proposal (unchr Res 1984/55 (15 March 1984) un Doc E/CN.4/RES/1984/55). A summary of the precedents leading to the creation of this Special Procedure can be found in the first report of the Special Rapporteur, Felix Ermacora, ‘Question of Human Rights in Chile’ (1 February 1985) un Doc E/CN.4/1985/21, paras 8–40. 116 See above nn 45 and 47. 117 Resolution x (12 May 1968) contained in the ‘Final Act of the 1968 Teheran International Conference on Human Rights’ (1968) un Doc A/CONF.32/41 (1968) 12. See also T Franck and SH Fairley, ‘Procedural Due Process in Human Rights Fact-Finding by International Agencies’ (1980) 74 ajil 308. 118 See ‘Draft model rules of procedure for the ad hoc bodies of the United Nations entrusted with studies of particular situations alleged to reveal a consistent pattern of violations of human rights’ (1970) un Doc E/CN.4/1021/Rev.1; unchr Res 8 (xxv) (4 March 1969). The Commission established a Working Group to revise the Draft Model. The final Draft Models are contained in un Doc E/CN.4/1086 (1973) and un Doc E/CN.4/1134 (1974).

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such.119 The Draft Model informed a memorandum agreed between the Working Group on Chile and the Chilean Government in 1978,120 but has not been widely used (if at all known) by mandate holders since. Neither Special Procedures’ reports nor their Manual of Operations121 refer to them. It does not appear that other private initiatives such as ‘The Belgrade Minimum Rules of Procedures for International Human Rights Fact-Finding Missions’(1981)122 or, more recently, the ‘Siracusa Guidelines’ (2013)123 have had a significant impact on Special Procedures’ implementation of mandates either.124 As eloquently articulated by Bassiouni, 50 years of fact-finding missions by Special Procedures and other un bodies have not been supported by any standard operating procedure, negatively impacting on data collection, continuity of mandates and comparability of results. In his words: In short, there is nothing to guide, instruct, or assist the heads and appointees to these missions of how to better carry out their mandates. 119 The ecosoc only took note of them rather than endorsing them: ecosoc Res 1870 (lvi) (17 May 1974). See also unga ‘Declaration on Fact-finding by the un in the Field of the Maintenance of International Peace and Security’ (9 December 1991) un Doc A/ RES/46/59, Annex. 120 See P Alston and S Knuckey, ‘The Transformation of Human Rights Fact-Finding. Challenges and Opportunities’ in P Alston and S Knuckey (eds), The Transformation of Human Rights Fact-Finding (oup 2016) 19. 121 Manual of Operations of the Special Procedures of the Human Rights Council (August 2008) in ‘Report of the 15th meeting of Special Procedures assumed by the Human Rights Council, from 23 to 27 June 2008’ (17 November 2008) un Doc A/HRC/10/24. Also available at ohchr website, accessed 4 April 2016. 122 The formulation of these standards came from the initiative of the International Association of Jurists and they are published in (1981) 75(1) American Journal of International Law 163. On the attempts to codify rules explained here and more current initiatives, see Alston and Knuckey (n 120) 18–21. 123 MC Bassiouni and C Abraham (eds), Siracusa Guidelines for International, Regional and National Fact-Finding Bodies (Intersentia 2013). 124 However, the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions lists the ‘Siracusa Guidelines’ as one of the instruments to bear in mind in the context of the Revision of the un Manual on the Effective Prevention and Investigation of ExtraLegal, Arbitrary and Summary Executions, Annex 2, Consultation document, available at accessed 4 April 2016. See also ohchr, Training Manual on Human Rights Monitoring (Professional Training Series No 7, United Nations 2001). On the attempts to codify rules explained here and more current initiatives, see Alston and Knuckey (n 120) 18–21.

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It strains one’s belief that in fifty years the most elementary aspects of standardized organization, planning, documentation, and reporting have not been developed. Thus, each mission has to reinvent the wheel and, in an organizational sense, has to reinvent itself as a mission. The results are usually poor or mediocre performance, except where particularly competent persons are appointed (…) This situation also means that there is little consistency and predictability as to the methods and outcomes.125 Heterogeneity of Practices and Trends in Working Methods of Special Procedures The absence of any coordinating mechanisms, until the initiation of an annual meeting of mandate holders in 1993, exacerbated the heterogeneity of practices on the part of Special Procedures. Firstly, only a minority of mandate holders published their methods of work. Potential users of Special Procedures had to infer what to expect from these mechanisms by reading the summaries of activities included in their reports. Among geographic Special Procedures, the Working Group on Chile published its working methods from its first report in 1975.126 These were contested by the Chilean Government but endorsed by the General Assembly and the Commission.127 The Ad Hoc Working Group of Experts on the Situation of Human Rights in Southern Africa devoted a section of its reports to the ‘organisation of its work’, but its content was limited to summarising the activities of the Working Group during the examined period and the international legal framework of reference. From 1971, the Working Group added the procedure and formalities followed to take testimony.128 Other unusual examples of early publication of methods of work in reports submitted to the Commission or the General Assembly were authored by the Working Group on Enforced or Involuntary Disappearance and the Special Rapporteur on torture. The Working Group on enforced disappearances refers

B

125 MC Bassiouni, ‘Appraising un Justice-related fact-finding missions’ (2001) 5 Wash ujl & Pol’y 35, 40–41. 126 ‘Protection of Human Rights in Chile: Note by the Secretary-General’ (7 October1975) un Doc A/10285, Annex paras 13–39. 127 On this discussion, see the fourth report of the Working Group in ‘Report of the ad hoc Working Group established under resolution 8 (xxxi) of the Commission on Human Rights to inquire into the present situation of human rights in Chile’ (10 February1977) un Doc E/CN.4/1221, paras 29–41. 128 unchr ‘Report of the Ad Hoc Working Group of Experts prepared in accordance with resolution 21 (xxv) of the Commission’ (1971) un Doc E/CN.4/1050 and Corr. 1, para 26. For a critique of the lack of methods of work, see F Ermacora, ‘International Enquiry Commission in the field of Human Rights’ (1968) 1 hrlj 180, 192.

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to its sources and methods of work from its first report, with special attention to the procedure to follow for ‘urgent appeals’: A procedure was approved whereby in such cases the Chairman was authorized immediately to dispatch a cable seeking information from the Government concerned and its assistance in tracing the person or persons involved. This procedure, which has been used on a number of occasions, has provoked some response and achieved certain results (…) Thus, while the Working Group has been in existence, it may well have been realized by those, throughout the world, who contemplated the detention of a person and his disappearance, that the Group was continuously acting as the eyes of the international community, and acting with that sense of urgency which alone can save lives. Just as older cases must be investigated too, new ones must be prevented.129 From its third report, statistical data has been included in the Working Groups’ reports,130 which become more complete and systematic after 1985.131 Following the approval of new methods of work in 1986,132 the Working Group established its admissibility criteria for communications in 1988.133 The Special Rapporteur on torture has outlined their methods of work concerning communications since 1986.134 The working methods published by the Working Group on enforced disappearances and the Special Rapporteur on torture were followed, to a greater or lesser degree, by other thematic mandates. For instance, the Special Rapporteur on Summary or Arbitrary 129 ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (26 January 1981) un Doc E/CN.4/1435, paras 10, 30 and 43. 130 ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (21 January 1983) un Doc E/CN.4/1983/14, para 42. 131 ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (23 January 1985) un Doc E/CN.4/1985/15, paras 73–90. 132 ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (24 January 1986) un Doc E/CN.4/1986/18, paras 32–34. 133 ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (31 December 1987) un Doc E/CN.4/1988/19, paras 2, 3 and 16–30. On other changes, see also ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (18 January 1989) un Doc E/CN.4/1989/18, para 23; ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (24 January 1990) un Doc E/CN.4/1990/13, paras 25–28. For more on the Working Group’s working methods, see de Frouville’s contribution to this collection. 134 ‘Torture and other cruel, inhuman or degrading treatment or punishment. Report by the Special Rapporteur, Mr P Kooijmans’ (19 February 1986) un Doc E/CN.4/1986/15, para 20.

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­Executions explained, in 1989, the scope of his activities – including his intervention on behalf of individuals – and briefly outlined admissibility criteria for urgent appeals.135 Also in 1989, the Special Rapporteur on religious intolerance outlined his methods of work in his report, but without explaining the rationale followed to react to allegations, beyond the priority given to the most recent cases.136 During the same period, the Special Rapporteur on the use of mercenaries explained his activities to the Commission and the General Assembly, but did not publish his methods of work.137 Every mandate holder also had to decide the material and temporal scope of their mandate, and adopted different approaches regarding similar resolutions of the Commission. For instance, ignoring other elements of the Commission’s original definition of the scope of its work, the Working Group on enforced disappearances decided to focus on individual cases of disappearances, prioritising those considered urgent;138 the Special Envoy on Bolivia elected to limit his analysis to civil and political rights, while acknowledging the relevance of economic, social and cultural rights violations in the country;139 the Special Representative of the Secretary General on Poland concluded that the refusal of the Polish Government to grant him a visit meant he had ‘no other choice than to limit [his] analysis of the situation to the normative aspects of the question relating to the application of the relevant international ­instruments 135 ‘Summary or Arbitrary Executions: Report by the Special Rapporteur, S Amos Wako, pursuant to Economic and Social Council Resolution 1988/38’ (6 February 1989) un Doc E/CN.4/1989/25, paras 6–25 and 302–04. More details on admissibility criteria can be inferred from his subsequent report on ‘Summary or Arbitrary Executions’ (23 January 1990) un Doc E/CN.4/1990/22, paras 6–22. 136 ‘Report on Implementation of the Declaration on the Elimination of All Forms of Intolerance and Discrimination based on Religion or Relief’ (30 December 1988) un Doc E/ CN.4/1989/44, paras 10–18 and 82–87. 137 ‘Report on the question of the use of mercenaries as a means of impeding the exercise of the right of peoples to self-determination – Submitted by the Special Rapporteur, Enrique Bernales Ballesteros, in accordance with Commission on Human Rights Resolution 1988/7’ (16 January 1989) un Doc E/CN.4/1989/14. 138 For more details on this, see D Weissbrodt, ‘The Three “Theme” Special Rapporteurs of the un Commission on Human Rights’ (1986) 80 ajil 685, 685–87; I Bailey-Wiebecke, ‘The un Working Group on Disappearances: After 15 Years, Focus on Asia’ (1995) v Human Rights Forum 51. 139 ‘Study on the Human Rights Situation in Bolivia by the Special Envoy, Hector Gross Espiell, appointed pursuant to Resolution 34 (xxxvii) of the Commission on Human Rights of 11 March 1981’ (31 December 1981) un Doc E/CN.4/1500, para 125, although he included a small section on the latter topic in his second report: ‘Study on the Human Rights Situation in Bolivia’ (13 December 1982) un Doc E/CN.4/1983/22, paras 32–37.

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ratified by Poland’.140 Some mandate holders understood that they had the competence to study allegations and events predating their appointment, while others took the opposite view.141 Significant discrepancies can also be observed in the mandates and working methods of Special Procedures when dealing with pre-conflict, conflict and post-conflict situations,142 or the treatment of non-state actors.143 In addition, mandate holders made unilateral decisions on how they would coordinate their activities with other Special Procedures and other relevant un human rights bodies. The joint hearings held by the Special Rapporteur on Summary and Arbitrary Executions and the Chairman of the Working Group on Southern Africa in 1985 are the first example of a joint country visit by Special Procedures.144 It was also the Special Rapporteur on Summary and 140 ‘Report on the situation in Poland presented by Under Secretary-General Hugo Gobbi’ (21 February 1983) un Doc E/CN.4/1983/18, especially para 52. 141 The Special Rapporteur on executions decided that 1980 was the critical date for studying allegations (although his mandate was created in 1982): see ‘Summary or arbitrary executions: Report by the Special Rapporteur, Mr S Amo Wako, Appointed pursuant to Resolution 1982/35 of 7 May 1982 of the Economic and Social Council’ (30 January 1983) un Doc E/CN.4/1983/16, paras 71 and 125–216; ‘Summary or arbitrary executions: Report by the Special Rapporteur, Mr S Amo Wako, Appointed pursuant to Resolution 1983/26 of 27 May 1983 of the Economic and Social Council’ (21 February 1984) un Doc E/ CN.4/1984/29, Annex 4. The Working Group on Enforced Disappearances could not decide on a date and largely studied cases predating that body’s creation: see ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (31 December 1987) un Doc E/CN.4/1988/19, para 14. The Special Rapporteur on Religious Intolerance gave priority to the use of ‘recent information’ with exceptions: ‘Implementation of the Declaration on the Elimination of all forms of Intolerance and of Discrimination based on Religion or ­Belief: Report of the Secretary-General prepared pursuant to paragraph 11 of Commission on Human Rights Resolution 1987/15’ (23 November 1987) un Doc E/CN.4/1988/44, para 13. 142 E Domínguez-Redondo, ‘Making the Connection: Security and Human Rights’ in MC Bassiouni and W Schabas (eds), New Challenges of the Human Rights Machinery (Intersentia 2011) 255, 259–61. 143 The Working Group on Enforced Disappearances took the position of not approaching non-state actors: un Doc E/CN.4/1986/18 (n 132) para 34. Conversely, the Special Rapporteur on El Salvador considered the political nature of the mandate allowed him to consider violations committed by non-state actors: see Pastor-Ridruejo (n 9) 214–15. 144 ‘Summary or arbitrary executions: Report by the Special Rapporteur, S Amos Wako, appointed pursuant to Economic and Social Council Resolution 1985/40 of 30 May 1985’ (7 February 1986) un Doc E/CN.4/1986/21, paras 56, 179–83 and 192–95. The experience was repeated in subsequent years: see e.g. ‘Summary or arbitrary executions: Report by the Special Rapporteur, S Amos Wako, appointed pursuant to Economic and Social C ­ ouncil

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Arbitrary Executions who was the first mandate holder to establish rules of co-existence with other Special Procedures, using his own (and evolving) criteria.145 The Commission did not respond when he requested guidelines to coordinate his work with the Working Group on enforced disappearances, in 1989.146 Motivated by the need to delimitate its scope of action in relation to the newly created un Committee Against Torture, the 1988 Special Rapporteur on torture’s report includes an extensive explanation of the term of reference governing its mandate and operations.147 He also decided to use the criteria of ‘dominant violation’ to assess which un organ was better equipped to deal with allegations containing a combination of human rights violations.148 Despite the heterogeneity of practices, it is possible to identify trends in the working methods followed by mandate holders, and a division between

145

146 147

148

Resolution 1986/36 of 23 May 1986’ (22 January 1987) un Doc E/CN.4/1987/20, para 236 and Annex i; ‘Summary or arbitrary executions: Report by the Special Rapporteur, S Amos Wako, appointed pursuant to Economic and Social Council Resolution 1987/60’ (19 January 1988) un Doc E/CN.4/1988/22, paras 21 and 236–48; ‘Summary or arbitrary executions: Report by the Special Rapporteur, S Amos Wako, appointed pursuant to Economic and Social Council Resolution 1988/38’ (23 January 1990) un Doc E/CN.4/1990/22, para 20; ‘Summary or arbitrary executions: Report by the Special Rapporteur, S Amos Wako, appointed pursuant to Economic and Social Council Resolution 1990/51’ (1 February 1991) un Doc E/CN.4/1991/36, paras 20 and 440–64. The Special Rapporteur initially decided not to study allegations regarding countries examined under geographic procedures, un Doc E/CN.4/1983/16 (n 141) para 71. See also un Doc E/CN.4/1984/29 (n 141) para 17; ‘Question of the Violation of Human Rights and Fundamental Freedoms in any part of the World, with particular reference to colonial and other dependent countries and territories. Summary or arbitrary executions: Report’ (12 February 1985) un Doc E/CN.4/1985/17, para 64. In 1986, the Special Rapporteur removed this restriction from his methods of work and considered allegations without justifying the change of position: un Doc E/CN/4/1986/21 (n 144). un Doc E/CN.4/1989/25 (n 135) paras 300–01. ‘Question of the Human Rights of all Persons Subjected to any form of Detention or Imprisonment: torture and other cruel, inhuman or degrading treatment or punishment. Report’ (12 January 1988) un Doc E/CN.4/1988/17, paras 4–13. See also ‘Question of the Human Rights of all Persons Subjected to any form of Detention or Imprisonment: torture and other cruel, inhuman or degrading treatment or punishment: Report of the Special Rapporteur, P Kooijmans, pursuant to Commission on Human Rights Resolution 1989/33’ (18 December 1989) un Doc E/CN.4/1990/17, paras 6–18. un Doc E/CN.4/1990/17 (n 148) para 9. Further inconsistencies, not adequately explained by mandate holders in handling communications, were highlighted by a note of the Secretariat discussed during the 15th annual meeting of Special Procedures: see accessed 4 April 2016.

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geographic and thematic Special Procedures. Until the 1990s mandate holders did not generally publish full accounts of their work methods. Instead these had to be inferred from their reports. Over the years it has become standard practice among thematic mandates to publish this information both in their reports and on the ohchr website, though it remains rare among geographic Special Procedures. This is partially explained by their intended short-time duration.149 The competence conferred on the Commission to deal with human rights violations clearly referred to patterns of gross and systematic violations of human rights.150 However, the Commission introduced references to communications in thematic mandates, normally limited to a request to ‘respond effectively’ to information coming before them.151 This was interpreted as competence to deal with individual communications, and while the Commission often limited the sources of information the mandate holders should use in its resolutions, this was widely ignored. During the 1980s, only the mandate holder on the use of mercenaries as a means of impeding the exercise of the right of peoples to self-determination did not deal with individual communications.152 The Working Group on Arbitrary Detention, created in 1991, was the first Special Procedure to receive a clear mandate of ‘investigating cases’.153 Only two other mandate holders were given the power to investigate cases: the Special Rapporteur on the Independence of Judges and Lawyers154 and the Special Rapporteur on the Implications for Human Rights of the Environmentally Sound Management and Disposal of Hazardous Substances and Wastes.155 Conversely, resolutions addressed to geographic mandates did not include a request to respond effectively to information coming before them from all available sources (including individual communications).156 This contributed to geographic mandate holders’ historic reluctance to deal

149 On the political and technical reasons explaining this, see Pastor Ridruejo (1991) (n 9) 235–38; Lempinen (n 8) 144–48. 150 See n 64. 151 See Weissbrodt (n 138). 152 The reports focussed on the positions held by States regarding mercenaries and specific situations. For instance, the 1989 report included a section on ‘Complaints of mercenary activities’ listing complaints made by States: un Doc E/CN.4/1989/14 (n 137) paras 17–22. 153 unchr Res 1991/42 (5 March 1991) un Doc E/CN.4/RES/1991/42, para 2. 154 unchr Res 1994/41 (4 March 1994) un Doc E/CN.4/RES/1994/41, para 3. 155 unchr Res 1995/81 (8 March 1995) un Doc E/CN.4/RES/1995/81 para 7. 156 See Weissbrodt (n 138) 688.

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with individual cases, a trend that remains today.157 As argued elsewhere, the adoption of the Code of Conduct for Special Procedures158 has provided for the first time – although indirectly – firm legal basis for the competence of mandate holders to deal with individual cases.159 The optimism generated by the end of the Cold War was reflected in the creation of new thematic mandates.160 The euphoria of the early 1990s did not last, with calls for rationalisation of the mechanism dominating endless discussion of reform they have been subjected to since.161 The attempt to balance the attention paid to civil and political rights with economic, social rights as well as ‘third generation rights’ involved a substantial change in the language chosen for the relevant resolutions of the Commissions. After 1997, several thematic Special Procedures were created with the function of undertaking studies of phenomena related to human rights rather than to investigating or ‘responding’ to human rights violations. States were not ready, for the most part, to approve mandates empowered to investigate human rights violations regarding economic, social and cultural rights, partly because of a reluctance to consider such rights as part of the catalogue of internationally recognised rights. 157 In 1980, the Group of Experts on southern Africa was endowed with the competence of drawing the Commission’s attention to cases requiring urgent action, but it was still the Commission who decided whether or not to send the urgent appeal: ‘Violations of human rights in southern Africa: Report of the ad hoc Working Group of Experts prepared in accordance with Commission on Human Rights Resolutions 12 (xxxv), 9 (xxxvi) and 12 (xxxvi) and Economic and Social Council Resolutions 1979/39 and 1980/33’ (28 January 1981) un Doc E/CN.4/1429, para 21. See also ‘Violations of human rights in southern Africa: Report of the ad hoc Working Group of Experts prepared in accordance with Commission on Human Rights Resolutions 1983/9 and 1983/10 and Economic and Social Council Decision 1983/135’ (24 January 1984) un Doc E/CN.4/1984/8, paras 17–19; ‘Violations of human rights in southern Africa: Report of the ad hoc Working Group of Experts. Progress Report’ (28 January1986) un Doc E/CN.4/1986/9, para 12. 158 unhrc Res 5/2 (17 June 2007) un Doc A/HRC/RES/5/2. 159 Domínguez-Redondo (n 14). 160 For instance, between 1990 and 1994 new thematic Special Procedures were created on the question of sale of children and child prostitution and child pornography, unchr Res 1990/68 (7 March 1990) un Doc E/CN.4/RES/1990/68; arbitrary detention (n 153); internally displaced persons, unchr Res 1992/73 (5 March 1992) un Doc E/CN.4/RES/1992/73; freedom of opinion and expression, unchr 1993/45 (5 March 1993) un Doc E/CN.4/ RES/1993/45; racism, unchr Res 1993/20 (2 March 1993) un Doc E/CN.4/RES/1993/20; violence against women, unchr Res 1994/45 (4 March 1994) un Doc E/CN.4/RES/1994/45; and independence of judges and lawyers, unchr Res 1994/41 (1 March 1994) un Doc E/ CN.4/RES/1994/41. 161 See Domínguez-Redondo (n 14) 268–72.

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This is illustrated by the discussions leading to the appointment of a Special Rapporteur on adequate housing.162 This prompted the Special Rapporteur to recommend to the Commission on Human Rights, to provide ‘unequivocal recognition to the human right to adequate housing’163 and the competence to deal with communications of human rights violations.164 Similar discussions marked the birth of the Special Rapporteur on the right to health.165 Other Special Procedures have also largely focussed on the codification of human rightsrelated topics rather than investigation of human rights violations – such as the Independent Expert on Structural Adjustment Programmes and Foreign Debt or the Independent Expert (now Special Rapporteur) on extreme poverty.166 The denomination ‘Special Rapporteur’ became reserved for mandates on civil and political rights and older Special Procedures, while names only used for geographic Special Procedures until then – such as Independent Expert and Special Representative – were introduced for thematic mandates.167 The different scope of the mandates and methods made Special Procedures very difficult to understand as a whole-as demonstrated by the conclusions reached by some experts in the field. Olivier de Frouville advanced the concept 162 Some of these discussions are reflected in ‘Summary record of the 52nd meeting, held at the Palais des Nations, Geneva, on Monday, 71 April 2000: Commission on Human Rights, 56th Session’ (1 May 2000) un Doc E/CN.4/2000/SR.52. See MJ Dennis, ‘The Fifty-Sixth Session of the un Commission on Human Rights’ (2001) 95 ajil 213, 216–17; ‘The FiftySeventh Session of the un Commission on Human Rights’ (2002) 96 ajil 181,189–91. On the background of the discussion and the position of the United States, opposing the recognition of right to adequate housing as an international human right, see P Alston, ‘The u.s. and the Right to Housing: A Funny Thing Happened on the Way to the Forum’ (1996) 1 ehrlr 120. 163 unchr ‘Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination, Miloon Kothari, submitted in accordance with Commission Resolution 2002/21’ (3 March 2003) un Doc E/CN.4/2003/5, para 65(a). 164 Ibid para 65(b). 165 See unchr ‘Summary Records of the 56th meeting of the 59th Session of the Commission on Human Rights, 22 April 2003’ (18 May 2003) un Doc E/CN.4/2003/SR.56. 166 The change of denomination was brought about by unhrc Res 17/13 (17 June 2011) un Doc A/HRC/RES/17/13, para 2. 167 The thematic procedures under this denomination at the time of writing are listed above (n 3). The first thematic procedure created with a name different than Special Rapporteur was the Special Representative on internally displaced persons in 1992 (n 160). Apart from those mentioned here, another example of current Special Rapporteur, born in 2005 as Independent Expert, is the thematic mandate on minority issues: see unhrc Res 25/5 (27 March 2014) un Doc A/HRC/RES/25/5, para 11.

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of ‘reactive’ thematic procedures (procédures thématiques de reaction) to distinguish Special Procedures close to treaty-based mechanisms from those who had not received a mandate to ‘respond’ to allegations of human rights violations.168 Beate Rudolf asserted that only thematic mandates dealing with cases of human rights violations could be considered ‘authentic’ Special Procedures, which at the time of writing meant that most Special Procedures focussing on economic, social and cultural rights would not fall within the category of ‘Special Procedures’. He named them ‘study rapporteurs’ whose task would be circumscribed to study a specific problem on a theoretical level (although most of these mandates did study situations of human rights violations).169 These distinctions were never sustained by strong arguments. The excluded mandate holders participated in annual meetings, and have always been considered Special Procedures by the ohchr and themselves. Moreover, the methods of work have progressively become more standardised, with independence of the original resolution creating the mandate. However, the disparity in practice regarding cases of violation existed, and survives to some degree today. C The Office of the un High Commissioner for Human Rights One of the least visible factors decisively impacting the functioning of Special Procedures is the structure of the administrative apparatus of the Secretariat that supports them. In 1997, the administrative support to the High Commissioner and the former Centre for Human Rights – which had been the main body of the Secretariat supporting human rights activities since 1982170 – were consolidated into a single Office of the United Nations High Commissioner for Human Rights.171 Different reforms of the administrative divisions comprising the ohchr have improved the support provided to Special Procedures, particularly with the creation of a ‘Special Procedures Branch’ in May 2003,172 at the 168 O de Frouville, Les procédures thématiques: une contribution efficace des Nations Unies à la protection des droits de l’homme (Pedone 1996) 16–17. 169 Rudolf (n 11) 290–91. 170 The Centre replaced the former Division for Human Rights following unga Res 37/237 (21 December 1982) un Doc A/RES/37/237, Section xii. The Centre co-existed with the Office of the High Commissioner between 1993 and 1997 creating tensions within the Secretariat. On this evolution of structures and conflict that ensued, see P Alston, ‘Neither Fish nor Fowl: The Quest to Define the Role of the un High Commissioner for Human Rights’ (1997) 8 ejil 321, 324–25; Berman (n 75) 14–15; Schwelb and Alston (n 16) 264–65. 171 See ‘Renewing the United Nations: A Programme of Reform’ (14 July 1997) un Doc A/51/950, especially paras 79 and 197–98. 172 See ‘Secretary-General’s Bulletin – Organization of the office of the United Nations High Commissioner for Human Rights’ (15 September 1997) un Doc ST/SGB/1997/10;

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time of writing under the ‘Human Rights Council and Special Procedures Division’ of the ohchr.173 However, not all mandate holders have been supported by the Special Procedures Branch. This has had a clear impact on how mandate holders have performed their work and coordinated among them since they rely heavily on the unit to which they have been assigned. The number of Special Procedures assigned to each Branch was made public in the 2005 Annual Report of the High Commissioner. The ohchr explained that 17 thematic Special Procedures were assisted by the Special Procedures Branch and 12 by staff in the Research and Right to Development Branch.174 The 12 country mandates were assisted by the Capacity Building and Field Operations Branch.175 A year later, the ohchr informed about its decision to transfer eight thematic mandates from the Research and Right to Development Branch to the Special Procedures Branch, ‘bringing to 25 the number of thematic mandates directly supported by the latter’.176 There were 28 thematic Special Procedures at the time, thus three were still not supported by the Special Procedure Branch, but the ohchr never specified which mandates were assigned to different sections and/or the rationale for it.177 The relationship between Special Procedures and the ohchr is, at times, fraught with tension and mutual mistrust.178 Nonetheless, significant progress has been made in terms of supporting Special Procedures, including a greater centralisation of the administrative support received by the Secretariat through the creation of the Office of the High Commissioner for Human Rights and the Special Procedures Branch, the computerisation of the information, ­‘Re-structuring the Centre for Human Rights’ (17 June 1996) un Doc A/C.5/50/71. The Special Procedure Branch was created in 2004 following proposals of the ohchr: see ‘Report of the Joint Inspection Unit on the Management Review of the Office of the United Nations High Commissioner for Human Rights’ (10 March 2004) un Doc A/59/65-E/2004/48. For a discussion of more recent structural issues that have implications for ohchr’s support for sp, see Connors’ contribution to this collection. 173 See ohchr ‘Organizational Chart’ in ‘ohchr Management Plan 2014–2017 – Working for Your Rights’ (ohchr, 2014) 15 accessed 4 April 2016. 174 ohchr ‘Annual Report of the High Commissioner for Human Rights 2005’ (ohchr, 2005) 43 accessed 4 April 2016. 175 Ibid. 176 ohchr ‘Annual Report of the High Commissioner for Human Rights 2006’ (ohchr, 2006) 118 accessed 4 April 2016. 177 Ibid. 178 See e.g. Piccone (n 14) 57–60; Domínguez-Redondo (n 9) 428–36.

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the use of shared databases,179 and greater transparency and availability of information concerning activities carried out by Special Procedures,180 including statistical graphics.181 Some ohchr publications have also contributed to a better understanding of Special Procedures. The now out-dated, and not replaced, Fact Sheet No 27 (Seventeen Frequently Asked Questions about United Nations Special Rapporteurs)182 was the first reference material comprising all Special Procedures, easily accessible to victims and other stakeholders. This publication was facilitated itself by the approval of a Manual of Operations of Special Procedures in 1999, although the document was kept secret by the ohchr until 2006.183 These efforts and the initiative of mandate holders to coordinate their activities, mainly through the celebration of annual meetings since 1993, alongside the creation of a Coordination Committee in 2005,184 have contributed to more standardised methods of work, and more importantly to create a clear identity for Special Procedures within the un human rights machinery, 179 ‘The Special Procedure Branch’s Quick Response Desk’ was established in 2000, to centralise data concerning urgent appeals by Special Procedures (ohchr Annual Report 2001, 147) and extended to all mandate holders in 2003 (ohchr Annual Report 2003, 106–10; ohchr Annual Report 2004, 40). See also ohchr Strategic Management Plan 2014–2017, 105. All reports available at accessed 4 April 2016. 180 See in general ohchr website devoted to Special Procedures, accessed 4 April 2016. 181 See e.g. unga ‘Report on the twenty-first annual meeting of Special Rapporteurs/Representatives, Independent Experts and Working Groups of the Special Procedures of the Human Rights Council, including updated information on the Special Procedures’ (29 January 2015) un Doc A/HRC/28/41, Annexes i–x. 182 It is still available on ohchr website for historical reference purposes: accessed 4 April 2016. 183 See Alston and Knuckey (2015) (n 120) Ch 1, Part iii, above (n 51). Until the Manual became publicly accessible, the author of this chapter, who attended the Special Procedure’s meeting, had to keep a copy in her archives of the first draft of the Manual circulated under nomenclature HR/NONE/98/93. See ‘Progress Report of the 6th Annual Meeting of Special Procedures’ (1 February 2000) un Doc E/CN.4/2000/5. The Manual was updated in 2008 (n 121). 184 unchr ‘Report of the Twelfth meeting of Special Rapporteurs/Representatives, Independent Experts and Chairs of Working Groups of the Special Procedures of the Commission on Human Rights and of the Advisory Services Programme’ (3 August 2006) un Doc E/ CN.4/2006/4, Section B. Information about its membership, activities, statements and reports of the Coordination Committee are available on the ohchr website, accessed 4 April 2016.

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in ­parallel to their own awareness as a group. In their own words: ‘While it may never have been conceived as a “system”, the evolving collection of these procedures and mechanisms now clearly constitutes and functions as a system of human rights protection’.185 iv

Conclusion: The ‘system’ of Special Procedures

The absence of centralised rules applicable to Special Procedures, their politicisation, the lack of strategy of the Commission on Human Rights (and now the Human Rights Council) with regard to creating and renewing mandates, and the correlated lack of clarity on the scope of such, are inherent to the existence of this kind of mechanism. The 1990s witnessed the institutionalisation of the Special Procedures. This development was facilitated by several factors, including in particular their growth in number, their permanence within the un organic structure, better institutional support, and the personal initiative of mandate holders to coordinate themselves through annual meetings. Special Procedures owe their existence to resolutions adopted by majority in the Council, and are thus not subject to specific state consent. The scope of thematic mandates is universal: they monitor how all States uphold their human rights obligations, addressing civil, political, economic, social and cultural rights as well as ‘rights of solidarity’ related to development and the environment. Individual as well as collective rights are under scrutiny. Mandate holders have developed flexible methods of work, and their activities extend ­beyond mere reportage of their activities and findings. Most accept complaints of human rights violations to which they react through ‘letters of allegations’ or expeditiously through ‘urgent appeals’. Mandate holders carry out country visits to investigate the situation of human rights in given domestic contexts. While these visits require the consent of the State, once the State has consented, the visit is premised on complete freedom of movement and respect for the immunity and independence of the experts.186 All these positive features 185 unga ‘Joint Declaration of Special Procedures for the protection of human rights’ (18 ­January 1993) un Doc A/CONF.157/9. 186 The principles governing visits have been included in the Manual of Operations of the Special Procedures of the Council (n 121) paras 52–74. A former attempt to ‘codify’ the terms of references for country visits was made in 1998 (‘Terms of Reference for FactFinding missions by Special Rapporteurs/Representatives of the Commission on Human Rights’ (23 December 1998) un Doc E/CN.4/1999/104) but was not officially endorsed by the ecosoc. While not formally approved, the terms of reference for country visits remain substantially the same as those outlined in the 1970s in un Doc E/CN.4/1021/Rev.1

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inherent to Special Procedures are linked to the autonomy and absence of rigid regulation governing their work. However, the dangers currently threatening Special Procedures also have a long historic trajectory, in what Olivier de Frouville explained as their ‘trivialization’ through their proliferation without logistical or financial support and constantly subjected to successive process of reform, frequently labelled as ‘rationalisation’.187 Special Procedures have acquired a distinct identity within the United Nations and are widely used by victims of human rights and other stakeholders worldwide. However, they remain vulnerable to attacks from States and criticism from different sources, partially because they have developed dissimilar approaches to their mandates. However, any further standardisation of practices must take into account that a distinctive feature of Special Procedures has always been the soft legal and political basis guiding their work. (1970), un Doc E/CN.4/1086 (1972) and un Doc E/CN.4/1134 (1974). With notable exceptions, these guidelines have been followed by mandate holders. On the different approach to visits by mandate holders, mainly during the early years of operations of the Special Procedures, see Domínguez-Redondo (n 9) 250–57. 187 de Frouville (n 11) 32.

chapter 2

Special Procedures: Independence and Impartiality Jane Connors Abstract This chapter focusses on the relationship between Special Procedures and the Office of the United Nations High Commissioner for Human Rights. Although independence, expertise and impartiality are essential for the credibility and effectiveness of the system of Special Procedures, the United Nations must provide substantive and technical support to Special Procedures. Accordingly, the Office of the High Commissioner for Human Rights, which bears that responsibility, is a key element in Special Procedures’ effectiveness and capacity to fulfil their mandates. The chapter addresses a number of aspects of the relationship between Special Procedures and the Office that are relevant to the way in which mandate holders as a whole and individually promote and protect human rights. It includes developments to 14 September 2015, but flags some important issues since that date. The chapter is based on the experience of the author who was tasked, between September 2009 and August 2014, with managing and coordinating support for a majority of the thematic mandates, and for the mechanisms established by the Special Procedures to support the system as a whole.

Keywords ohchr – High Commissioner for Human Rights – un staff – thematic mandates – expertise – independence – impartiality – financing – streamlining

i

Introduction

Independence, expertise and impartiality are essential for the credibility and effectiveness of the system of Special Procedures of the Human Rights Council, and those who hold individual mandates.1 The Office of the un High 1 un Human Rights Council (unhrc) Resolution 5/2 ‘Institution-building of the Human Rights Council’ (18 June 2007) un Doc A/HRC/RES/5/2, preambular paras 2 and 11; unhrc Res 16/21 ‘Review of the work and functioning of the Human Rights Council’ (12 April 2011) un Doc A/HRC/RES/16/21 annex, para 24.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004304703_004

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Commissioner for Human Rights (ohchr) is the United Nations Department privileged to be responsible for the substantive and technical support of Special Procedures. Accordingly, ohchr is a key element in Special Procedures’ effectiveness and capacity to fulfil their mandates. It is also crucial in ensuring that Special Procedures are regarded as a coherent human rights mechanism, rather than individual responses to thematic and country specific concerns. This chapter addresses a number of aspects of the relationship between Special Procedures and ohchr relevant to the way mandate holders as a whole and individually promote and protect human rights. Section ii describes the Special Procedures, focussing on the growth in their number, and associated challenges. Section iii outlines ohchr’s institutional arrangements to support Special Procedures and Section iv addresses the support ohchr provides to them. Sections v and vi consider ohchr and the Special Procedures and resources for Special Procedures respectively. Section vii discusses the potential of the Special Procedures system, while Section viii contains some concluding remarks. The chapter includes developments to 14 September 2015, but flags some important issues since that date.2 It is based on the experience of the author who was tasked, between September 2009 and August 2014, with managing and coordinating support for the majority of the thematic mandates, and the mechanisms established by the Special Procedures to support the system as a whole. That period saw a growth in the number of mandates, expansion of the scope and sophistication of their activities, as well as the strengthening of the identity of Special Procedures as a system, rather than experts operating individually. It also coincided with the Council’s five-year review of its work and functioning, whose five topics included Special Procedures, and the review of the Council’s status by the General Assembly. Both reviews concluded in March 2011.3 2 The 30th and 31st Sessions of the Human Rights Council convened after 14 September 2015; several Special Procedures mandate holders resigned and have been replaced, or the process for their replacement has begun. The General Assembly approved the Proposed Programme Budget for 2016/17 and the Report of the 22nd Annual Meeting of Special Procedures mandate holders (unhrc ‘Report of the twenty-second annual meeting of special rapporteurs/ representatives, independent experts and working groups of the Special Procedures of the Human Rights Council (Geneva, 8 to 12 June 2015), including updated information on the Special Procedures’ (17 February 2016) un Doc A/HRC/31/39) was made available. Readers should refer to that report for activities of Special Procedures during 2015. 3 un General Assembly (unga) Res 65/281 (20 July 2011) un Doc A/RES/65/281. Documents relating to the review are available at accessed 26 June 2016.

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The Special Procedures

The Special Procedures are mandates created by the Human Rights Council, and its predecessor, the Commission on Human Rights (chr), implemented by human experts entitled Special Rapporteurs, Independent Experts or Working Groups.4 They are appointed by the Council, but are independent from it, although accountable to it in the exercise of their mandates.5 They are also independent from the mandate of the High Commissioner for Human Rights,6 the ohchr and the rest of the un Secretariat.7 Special Procedures enjoy privileges and immunities required for the independent exercise of their functions. These are delineated in Section 22 of article vi of the 1946 Convention on the Privileges and Immunities of the United Nations,8 and are governed by the General Assembly Regulations Governing the Status, Basic Rights and Duties of Officials on Mission.9 They are also subject to a Code of Conduct adopted by the Human Rights Council in 2007.10 4

The nomenclature of Special Procedures was streamlined during the institution-building phase of the Human Rights Council, which took place between 2006 and 2007. Prior to this, mandate holders could also be named Representative of the Commission, Representative of the Secretary-General or Special Representative of the Secretary-General. More recently, several mandates, including those on Cultural Rights and Minority Issues, originally Independent Experts, have been reclassified as Special Rapporteurs: unhrc Res 19/6 (12 December 2011) un Doc A/HRC/RES/19/6, para 8; unhrc Res 25/5 (4 December 2013) un Doc A/HRC/RES/25/5, para 11. 5 unhrc Res 5/2 ‘Code of Conduct for Special Procedures mandate holders of the Human Rights Council’ (7 August 2007) un Doc A/HRC/RES/5/2, annex, art 15. 6 unga Res 48/141 ‘High Commissioner for the Promotion and Protection of all Human Rights’ (20 December 1993) un Doc A/RES/48/141. 7 Secretary-General Ban Ki-moon underlined this in his statement to the Human Rights Council on 25 January 2011 when he made clear that Special Rapporteurs are appointed by the Council, not the Secretary-General: ‘Secretary-General’s remarks to the Human Rights Council – Statement’ (25 January 2011) accessed 1 July 2016. 8 1 unts 15. 9 unga Res 56/280 (27 March 2002) un Doc A/RES/56/280. 10 Code of Conduct (n 5). For more on the Code, see P Alston, ‘Hobbling the Monitors: Should un human rights monitors be accountable?’ (2011) 52 Harvard International Law Journal 561. For another view, see I Jazairy, In Defence of Special Procedures of the Human Rights Council: An Alternative View from the South (Geneva Centre for Human Rights Advancement and Policy 2015) paras 113–35 and Annex ii, ‘Elements for a draft resolution on the setting-up of a consultative legal committee of the Human Rights Council on the Implementation of the Code of Conduct for Special Procedures Mandate-holders’.

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They receive travel and subsistence allowance when performing their mandated activities, but are neither un officials nor staff members, and do not receive a un salary or honorarium. On 14 September 2015, as the 30th Session of the Human Rights Council convened, there were 55 Special Procedures: 41 on human rights themes – held by 35 individual mandate holders and six five-member Working Groups – and 14 covering countries or territories held by individuals. In all, there were 79 mandate holders. This includes the mandate holder on the Syrian Arab Republic, who has been appointed by the Council, but whose work as a Special Rapporteur will begin only when the mandate of the Commission of Inquiry on the country, created by Council Resolution S-17/1, comes to an end.11 The origins and growth of Special Procedures of the chr, and now the Human Rights Council, have been tracked in several studies. The Universal Rights Group’s recent and comprehensive ‘History of the United Nations Special Procedures Mechanism: Origins, Evolution and Reform’ is particularly useful.12 It and other studies describe the steps leading to the creation of the first two mandates by the chr in 1967 – the ad hoc Working Group of Experts on South Africa and the Special Rapporteur on apartheid13 – and developments which have led to the many Special Procedures mandates we have today. These show that what is now often described as a system14 developed unsystematically and grew ad hoc as the chr and the Council responded to human rights situations 11

unhrc Res S-18/1, ‘The human rights situation in the Syrian Arab Republic’ (2 December 2011) un Doc A/HRC/RES/S-18/1. 12 M Limon and H Power, ‘History of the United Nations Special Procedures Mechanism: Origins, Evolution and Reform’ (Universal Rights Group, 2014) ˂www.universal-rights .org/urg-policy-reports/history-of-the-united-nations-special-procedures-mechanism -origins-evolution˃ accessed 29 March 2016. The Sub-Commission of the Commission on Human Rights on the Promotion and Protection of Human Rights (formerly on the Prevention of Discrimination and Protection of Minorities) also established Special Rapporteur research mandates, which were conducted by individual members of the Sub-­Commission. A Special Rapporteur on the Status of Women and Family Planning of the Commission on the Status of Women was appointed under un Economic and Social Council Res 1326(xliv) (31 May 1968) un Doc A/7203 and csw Resolution 7(xxi) (E/4472, Chap xviii). A Special Rapporteur on Disability, operative from 1994 to 2014, was established by the Standard Rules on the Equalization of Opportunities for Persons with Disabilities to supervise their implementation adopted in 1993 by unga Res 48/96 (20 December 1993) un Doc A/RES/48/96. 13 un Commission on Human Rights (unchr) Res 2(xxiii) (6 March 1967) and Res 7(xxiii) (16 March 1967) un Doc E/4322-E/CN.4/940 (escor, 42nd Session, Suppl. No.6). 14 See unga Res 60/251 ‘Human Rights Council’ (3 April 2006) un Doc A/RES/60/251 establishing the Human Rights Council, para 6.

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in countries and the recognition of substantive human rights obligations. As discussed elsewhere in this volume, at the outset, country mandates were established, followed by thematic mandates, initially, to address civil and political rights. Thereafter, economic, social and cultural rights mandates, and those focussed on the human rights challenges experienced by groups identified as vulnerable were created.15 For 18 years from 1981, the number of mandates relating to country situations outnumbered those on themes. There has been a spike in the creation of country mandates since 2011, especially as some States, including the Central African Republic, Côte d’Ivoire and Mali, have been keen to benefit from the assistance that a country-specific Special Procedure on their own situation can provide, but at the time of writing thematic mandates outnumber country mandates almost two to one.16 Extrapolations from the rate of establishment of Special Procedures by the Council over the last five years suggest that there may be up to 100 mandates by 2030.17 This testifies to the activism and responsiveness of the Council. It also raises a number of issues relating to the sustainability of the Special Procedures system. Perhaps the most basic is whether adequate human and financial resources can be marshalled to support the many mandates we might have in the future, particularly in light of the fact that resources for existing mandates are limited, and are often insufficient fully to support the activities Special Procedures wish to undertake to fulfil their mandates appropriately. Another issue is whether this growth will overburden States and compromise their capacity, or undermine their political will, to engage with Special Procedures constructively in the Human Rights Council, the General Assembly and – more i­ mportantly – at the domestic level. In the context of the un human rights framework alone, States are tasked with implementation of recommendations from Special Procedures, human rights treaty bodies, the Universal Periodic Review (upr), occasional Council resolutions, and mechanisms that the Council may create, such as commissions of inquiry or investigations. They may have also received recommendations from regional human rights mechanisms and other bodies which are not focussed on human rights, placing further pressure on their capacity to respond. If followed up appropriately, recommendations from un human rights mechanisms can contribute to ­positive outcomes for individuals 15 16

17

See Domínguez-Redondo’s contribution to this collection. Limon and Power (n 12) 10–11; one curiosity is that the Council, unlike the Commission has not created any purely research mandates, possibly because research tasks can be devolved on its Advisory Committee. Limon and Power (n 12) 11.

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and a State’s national protection system.18 But as the number of Special Procedures and other mechanisms and their recommendations increase, so do the challenges that States, and other stakeholders, such as civil society, confront in respect of follow-up and implementation. Indeed, the very multiplicity of recommendations may jeopardise their impact on the ground.19 Considered from another perspective, which is that of this author, their impact may be greater as a result of reinforcement through repetition, particularly as mechanisms are complementary but distinct. Some are of the view that the growth in

18

19

ohchr’s Annual Reports contain information on the impact of the activities of Special Procedures. For example, ‘ohchr Report 2014’ (ohchr, May 2015) accessed 10 March 2016, 309 highlights the adoption of a law on alternative civilian service in February 2014 and the granting of amnesty for those previously condemned for conscientious objection to military service in Transnistria as the implementation of recommendations of the Special Rapporteur on Freedom of Religion or Belief made during his 2011 visit to the Republic of Moldova; Moldova also adopted regulations in October 2014 establishing the position of an Ombudsman for Psychiatry, implementing a recommendations of the Special Rapporteur on Extreme Poverty and Human Rights made during her visit in September 2014; Seychelles enacted the Prohibition on Trafficking in Persons Act and created a national inter-ministerial coordinating committee on trafficking, pursuant to recommendations of the Special Rapporteur on Trafficking in Persons, Especially Women and Children, in January 2014; in March 2014, Mauritania adopted a road map to implement the recommendations made by the Special Rapporteur on Contemporary Forms of Slavery, Including its Causes and Consequences, during her visit in 2009. ‘ohchr Report 2013’ (ohchr, May 2013) 95–97 accessed 10 March 2016, provides further examples of the impact of the work of Special Procedures. These include the contribution of the Working Group on Arbitrary Detention in its Opinion 67/2011 (wgad ‘Communication Addressed to the Government on 9 September 2011’ (9 September 2011) Opinion 67/2011 accessed 10 March 2016) and the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions to the November Supreme Court decision to release Israel Arzate, arbitrarily detained in Cuidad Juárez, Mexico. Universal Human Rights Group, ‘The Human Rights Council at 10: Improving Relevance, Strengthening Impact’ (Glion Human Rights Dialogue, Glion, May 2015) 13 accessed 10 March 2016, questions the ‘degree to which expansion of human rights mechanisms and their output over the past two decades as led to a corresponding strengthening of their impact on the ground’.

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Special Procedures has resulted from overlap and duplication of mandates.20 Others consider that the increase – which some describe as ‘proliferation’21 – particularly in thematic mandates, to date and going forward – devalues their ‘currency’, and, accordingly, their capacity to influence.22 A point made in this context, is that the creation of thematic mandates on themes which go beyond ‘classical’ civil and political rights shifts the focus of human rights from core rights and freedoms to less defined, even vague, collective rights, which may undermine core rights and their implementation. Mchangama and Veridame go so far to suggest that this is a strategy deployed by specific States to deflect criticism of their human rights records.23 The process leading to the creation of human rights mandates, especially thematic Special Procedures, is complex, and varies from mandate to mandate. It is usually preceded by a combination of state interest and civil society advocacy built up over several years, manifested by initiatives in the Council, such as resolutions mandating reports or panels, or tasking the Council’s Advisory Committee to conduct a study, and related informal side-events and other activities.24 The challenges that may be posed by the increase in Special Procedures have been recognised by many States and civil society actors and there have been attempts to rein in this growth, the most recent comprehensive effort being the ‘review, rationalization and improvement’ exercise mandated by General Assembly Resolution 60/251 creating the Human Rights Council.25 20

See the proposals of the African Group, Algeria, Bangladesh, Guatemala, Morocco, India, Iran and Japan, ‘Compilation of State proposals’ Annex ii, Chapter ii, Part A, ‘Report of the open-ended intergovernmental working group on the review of the work and functioning of the Human Rights Council’ (4 May 2011) un Doc A/HRC/WG.8/2/1. See also n 29 below. 21 See e.g. M Limon and T Piccone, ‘Human Rights Special Procedures: Determinants of Influence. Understanding and Strengthening the Effectiveness of the un’s Independent Human Rights Experts’ (Universal Rights Group, March 2014) 16 accessed 9 February 2016. 22 J Mchangama and G Verdirame, ‘The Danger of Human Rights Proliferation: When Defending Liberty, Less is More’ Foreign Affairs (24 July 2013). 23 Ibid. 24 The web pages of individual Special Procedures contain their constituent resolutions and describe much of the background relating to their creation, accessed 1 July 2016. 25 un Doc A/RES/60/251 (n 14) para 6; unhrc Dec 1/104 ‘On the Implementation of Paragraph 6 of General Assembly Resolution 60/251’ (13 November 2006) un Doc A/HRC/ DEC/1/104.

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The Council conducted this exercise during its institution-building phase ­between its 1st and 5th Sessions in 2006 and 2007.26 These efforts have been unsuccessful, largely because States and civil society advocates supportive of a particular Special Procedure, and usually the incumbent mandate holder, heavily invested in the mandate politically and substantively, are reluctant to see it discontinued or merged with other Special Procedures.27 Stakeholders also understand that the objectives of streamlining proposals are not necessarily neutral, nor benign.28 Nonetheless, such proposals continue to be put forward. In 2015, for example, Idriss Jazairy, now serving as the Special Rapporteur on the Negative Impact of Unilateral Coercive Measures on the Enjoyment of Human Rights,29 previously Algeria’s Permanent Representative in Geneva and a key actor in the 26

27

28

29

Limon and Power (n 12) 13–16. The principles governing the review, rationalization and improvement of mandates and the creation of new ones are set out in paras 54–58 of Human Rights Council Resolution 5/1 on the institution-building of the Human Rights Council. Para 63 provides that decisions to create, review or discontinue country mandates should also take into account the principles of cooperation and genuine dialogue aimed at strengthening the capacity of Member States to comply with their human rights obligations. M Limon and T Piccone, ‘Human Rights Special Procedures: Determinants of Influence. Understanding and Strengthening the Effectiveness of the un’s Independent Human Rights Experts’ (Universal Rights Group, March 2014) 16, citing interviews with African and Asian diplomats and a thematic Special Procedure mandate holder [Economic, Cultural and Social rights] accessed 9 February 2016. The interviews indicate that a thematic mandate holder considered that rationalisation, focussing on mandates in women’s and children’s rights, could result in the merger or discontinuation of two-thirds of the mandates; a state delegate considered the same could be achieved with mergers in the area of economic and social rights. Jazairy (n 10) paras 68–73 sees potential for rationalisation in the mandates on foreign debt, promotion of a democratic and equitable order and international solidarity, those on children, women, environment and toxic waste, freedom of expression, and freedom of peaceful assembly and of association. He also sees some duplication in the mandate on truth, justice and reparations, the Special Procedures communication procedure and the Council’s Complaint Procedure. From the author’s perspective, these views are subjective and debatable. See e.g. T Baldwin-Pask and P Scannella, ‘The unfinished business of a Special Procedures system’ in MC Bassiouni and WA Schabas (eds), New Challenges for the Human Rights Machinery (Intersentia 2011) 425. Jazairy (n 10) paras 80–82 takes a different view. unhrc ‘Human rights and unilateral coercive measures’ (30 October 2013) un Doc A/HRC/RES/27/21.

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institution-building process of the Council and its five-year review from 2010 to 2011, proposed the creation of an open-ended Working Group of the Council, with detailed tasks, which would meet every three years to formulate specific and actionable suggestions for the Council on the ‘review, rationalization and improvement’ process.30 States and groups of States increasingly make statements in the Council on systemic issues relating to Special Procedures, some highlighting the resource constraints they face, and recommending restraint in creating new mandates and streamlining those which exist.31 Scholars and policy-analysts are now examining this human rights mechanism,32 often with a critical eye. Some suggest that the quantitative expansion in mandates has not been matched by an improvement in the effectiveness of the Special Procedures mechanism on the ground.33 As in the past, among ideas advanced is streamlining of the system to improve effectiveness. These and related ideas are certain to be discussed during 2016 which marks the tenth anniversary of the establishment of the Human Rights Council.34 iii

Institutional Arrangements to Support Special Procedures

ohchr, created by the General Assembly to support the High Commissioner for Human Rights in 1993,35 was merged with the Centre for Human Rights on 1 September 1997,36 and given the task of being the peak entity within the un invested with the authority to promote and protect universal human rights. As part of this role, ohchr supports the un human rights intergovernmental and expert mechanisms. These are the Human Rights Council, the Council’s subsidiary mechanisms (which include the Special Procedures), the upr, its Advisory Committee, Complaints Procedure, Working Groups and any ad hoc 30 31

32

33 34 35 36

Jazairy (n 10) paras 89–90. See e.g. Cross-regional statement delivered on 18 March 2015 by Uruguay on behalf of 44 States at the 36th Meeting of the 28th Session of the Human Rights Council available on the Human Rights Council Extranet; ‘Compilation of State Proposals’ (n 20). See e.g. T Piccone, Catalysts for Change: How the un’s Independent Experts Promote Human Rights (Brookings Institution Press 2012); ‘Special Issue: The Role of the Special Rapporteurs of the United Nations Human Rights Council in the Development and Promotion of International Human Rights Norms’ (2011) 15 International Journal of Human Rights 2. Limon and Power (n 12) 17. See n 19, 10. unga Res 48/141 ‘High Commissioner for the Promotion and Protection of all Human Rights’ (20 December 1993) un Doc A/RES/48/141, paras 6–7. ‘Part Two: Human Rights’ (1997) 51 un Yearbook 589.

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commissions of inquiry or other fact-finding mechanisms it may create. It also supports the 10 human rights treaty bodies. ohchr has other responsibilities. At the end of 2014, it was operating or supporting 66 field presences, had 27 officers in un country teams and supported over 800 human rights officers in peace or political missions.37 ohchr conducts thematic research, develops policy and leads on mainstreaming of human rights across all work streams of the un.38 Additionally, the Office supports the High Commissioner for Human Rights in carrying out his or her independent mandate as set out in General Assembly Resolution 48/141 adopted in 1993.39 ohchr’s institutional arrangements to support Special Procedures have evolved since its creation. On 1 May 2003, the Special Procedures Branch (spb) was established40 in response to a recommendation of the 2002 un Office of Internal Oversight (oios) Management Review of ohchr. This suggested that all entities servicing Special Procedures and the petitions team should be combined in a separate Special Procedures and petitions division.41 The Branch was initially responsible for around 17 mandates dealing with civil and political rights, and what were described as ‘groups in focus’ issues, such as violence against women. It also took on coordination tasks, including the creation and maintenance of databases of alleged violations, and the processing of confidential ‘communications’ from mandate holders to States. As part of its coordination role, it also organised the Annual Meeting of Special Procedures, first convened in 1993 on the margins of the Vienna World Conference on Human Rights. Responsibility for economic and social rights mandates remained with the Research and Right to Development Branch, while geographical mandates were supported by the Capacity Building and Field Operations Branch.42 In 2006, spb was given responsibility for the support of 37

38

39 40 41 42

ohchr Report 2014 (n 18) 43. United Nations Human Rights Appeal 2015 (at 8–9 and 12) indicates that new presences were established in Burundi and the Republic of Korea, the latter to follow up on the recommendations of the Commission of Inquiry on the Democratic People’s Republic of Korea in early 2015 and a country office for Honduras will also be established: see ˂www.ohchr.org/EN/PublicationsResources/Pages/AnnualReportAp peal.aspx˃ accessed 29 March 2016. ohchr ‘ohchr Management Plan 2014–2017: working for your rights’ (ohchr, 2014) 13–20  accessed 10 March 2016. (n 35). ohchr ‘ohchr Annual Report 2003’ (ohchr, 2003) 175 accessed 10 March 2016. unga Res 57/488 ‘Management review of the Office of the United Nations High Commissioner for Human Rights’ (21 October 2002) un Doc A/57/488, para 34. ohchr Annual Report 2003 (n 40) 175.

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the majority of the thematic mandates on civil, cultural, economic, political and social rights and ‘groups in focus’ issues. It also retained its responsibility for coordination tasks relating to all mandates.43 Two thematic mandates, considered ‘study-oriented’ – on Human Rights and International Solidarity44 and on Transnational Corporations and Other Business Enterprises45 – remained with the Research and Right to Development Division (rrdd), which replaced the Branch. In 2011, that Division was assigned the Working Group on the ­Issue of Human Rights and Transnational Corporations and Other Business Enterprises and its related Forum established by the Council through its Resolution 17/4.46 Responsibility for support of the Working Group of Experts on People of African Descent, created along with other mechanisms and ohchr programmes directed to the elimination of racism, racial discrimination and related intolerance to follow up the Durban Declaration and Programme of Action,47 was also devolved on this part of ohchr. Support for geographical mandates remained the responsibility of the Field Operations and Technical Cooperation Division (fotcd), which deals with country situations. In 2014, all thematic mandates, except the Working Group on African descent, were assigned to spb, which became part of the Human Rights Council and Special Procedures Division (now the Human Rights Council Mechanisms Division) in 2010.48 The Branch remains responsible for coordination activities, as it has been from its creation. Geographical mandates continue to be supported by the relevant branches of fotcd. In early 2015, High Commissioner Zeid, who took up his position in September 2014, announced a ‘Change Initiative’, involving the restructuring of ohchr.49 If implemented, this would 43

44 45

46 47 48 49

Organization Chart of ohchr in ‘ohchr Annual Report 2006’ (ohchr, 2006) 173 accessed 10 March 2016; ohchr ‘2007 Report: Activity and Results’ (ohchr, 2007) 179 accessed 10 March 2016. unchr Res 2005/55 ‘Human rights and international solidarity’ (20 April 2005) un Doc E/ CN.4/RES/2005/55. unchr Res 2005/69 ‘Human rights and Transnational Corporations and Other Business Enterprises’ (20 April 2005) un Doc E/CN.4/RES/2005/69 established the Special Representative of the Secretary-General on this issue. unhrc Res 17/4 ‘Human Rights and Transnational Corporations and Other Business Enterprises’ (6 July 2011) un Doc A/HRC/RES/17/4. unchr Res 2002/68 ‘Racism, Racial Discrimination, Xenophobia and Related Intolerance’ (25 April 2002) un Doc E/CN.4/RES/2002/68, para 8. ohchr Organization Chart in ohchr Report 2014 (n 18) 139. Opening Statement of the High Commissioner for Human Rights to the 28th Session of the Human Rights Council, accessed 10 March 2016.

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incorporate spb within rrdd. This would bring the mandates on economic and social rights back to this Division, and task it with support for all other thematic mandates. Geographical mandates would remain with fotcd. Reassigning spb away from the Division which supports the Council – which establishes Special Procedures mandates, appoints mandate holders, and to which they are accountable – to the ohchr Division responsible for the bulk of the thematic work of ohchr, and producing reports of the Secretary-General and the High Commissioner on human rights themes deserves careful consideration.50 At the very least, the reasons why responsibility for supporting over 10 mandates was reassigned to spb from rrdd (two as recently as January 2014) should be examined thoroughly. Also, the implications for geographic Special Procedures of the High Commissioner’s ideas on support for field operations, involving the creation of seven regional hubs and a strengthened New York Office, require analysis. Indeed, a comprehensive assessment of the benefits to the Special Procedures and ohchr of assignment of all thematic mandates to rrdd should be undertaken, as should the optimum entity for support for country mandates. Any assessment should ensure that the views of Special Procedures are considered fully. Mandate holders often express the view that servicing by spb, an ohchr entity dedicated to their support, brings with it experience in systemic issues common to all Special Procedures. These include formal requirements relating to fulfilment of reporting obligations, formulation of communications and public statements, as well as handling of systemic issues, such as extreme criticism and attacks on mandate holders. Geographic mandate holders have also indicated to the author and others that, in view of these considerations, they would welcome being supported by spb. In their 2014 Policy Report, Limon and Piccone argue that transparency in resource management is more difficult to achieve if support for Special Procedures is not concentrated in one place in ohchr. They also consider that centralisation of support would allow for greater levels of accountability relating to staff and may strengthen the independence of mandate holders from extraneous influence. They suggest that support for mandate holders within ohchr should be ‘ring-fenced’ so that the Office, consciously or unconsciously, does not exert influence over mandate holders’ reports, communications and other output and the choice of where they concentrate their activities. Limon and Piccone report on their interviews with mandate holders, which highlight the reliance the latter place on ohchr staff and the influence they 50 See unog Staff Coordinating Council, ‘Update on the restructuring at ohchr’ (unog Staff Coordinating Council, 15 September 2015) accessed 10 March 2016.

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can have, including because of their understanding of local contexts. Limon and Piccone also indicate that some state delegations would like to see a separation between ohchr as an independent entity and as a secretariat to human rights mechanisms, or at least a clearer demarcation amongst the different parts of ohchr.51 These points, reiterated by Power and Limon in a blog published in April 2015,52 have been raised frequently with the author by mandate holders. Based on these opinions and her experience she considers that the possibility of creating a dedicated structure within ohchr to support all thematic and geographic Special Procedures should be examined thoroughly in the short- to medium-term. This structure should also be responsible for supporting and encouraging the coordination and systemic aspects of the Special Procedures as a whole, especially given progress which has been achieved in these areas recently discussed below. In the meantime, as the High Commissioner’s Change Initiative is implemented the most appropriate location for this crucial coordination function should be identified, again with the input of former and current mandate holders and on the basis of knowledge and experience of those who work with them or have done so in the past. iv ohchr Support for Special Procedures ohchr supports Special Procedures through its legal, thematic, policy, methodological and fact-finding expertise, research and analysis, and provision of administrative and logistical servicing. With this support, mandate holders fulfil their traditional functions, as well as others which may be set out in their constituent resolutions. They conduct country visits agreed upon with States or mandated by the Council; receive and act on petitions from victims of human rights violations, human rights defenders and others which raise individual cases, or broader issues, through confidential written communications to States and others; elaborate thematic studies and convene consultations; contribute to the development of international law by crafting principles and guidelines, often at the request of the Council; engage in advocacy and raise public awareness, including through press releases and statements; and

51 52

Limon and Piccone (n 21) 22. H Power and M Limon, ‘HR28 and the Special Procedures: celebrating three steps forward, and avoiding one step back’ (Universal Rights Group, 1 April 2015) accessed 26 June 2016.

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­ rovide advisory services to States and others.53 As the scope of Special Procep dures’ work has become more ambitious, they increasingly follow up on earlier recommendations and conclusions raised in communications or reports with individual States. Some do this through transmitting follow-up reports to the Human Rights Council. Many have developed working relationships with other parts of the un, and initiatives have been developed with regional human rights mechanisms.54 Several have also submitted amicus briefs or provided expert evidence on the theme of their mandate to international and national courts and tribunals.55 Special Procedures’ work is fed into other human rights mechanisms, such as the upr, raising their visibility and resulting in enhanced cooperation from States including in the form of visit invitations, standing invitations and responses to communications.56 Supported by ohchr, all report annually to the Human Rights Council, where they engage in inter-active dialogue with Members and Observers. Most also report to the General Assembly.57 A few are required to interact with other un intergovernmental bodies relevant to their mandate.58 53

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A general description of the tasks of Special Procedures and the activities of individual mandate holders can be found at accessed 10 March 2016. For example, the 2012 Roadmap for cooperation between Special Procedures of the Human Rights Council and the mandate holders of the African Commission on Human and Peoples’ Rights and its implementation plan: accessed 29 March 2016. For example, the torture mandate: accessed 26 June 2016. A report prepared by ohchr compiling information from human rights mechanisms, including Special Procedures, is among the three reports forming the basis of the upr (unhrc Res 5/1 ‘Institution-building of the Human Rights Council’ (18 June 2007) un Doc A/HRC/RES/5/1, para 15(b)). Recommendations from upr relating to Special Procedures from 2008 to May 2013 can be found on the ohchr Special Procedures webpage. See also upr Info: ˂www.upr-info.org˃. Reporting requirements are included in Human Rights Council or General Assembly resolutions. In 2015, the following geographical Special Procedures did not report to the General Assembly: Cambodia, Central African Republic, Côte d’Ivoire, Haiti, Mali, Somalia, Sudan; thematic Special Procedures that did not report were those on arbitrary detention, environment, slavery, hazardous substances and wastes, and discrimination against women in law and in practice. The privacy mandate will report to the General Assembly from its 71st Session in 2016 and the Syria mandate holder will report when he is in function. The Eritrea and disappearance mandates do not present written reports, but engage in an interactive dialogue with the Assembly. For example, the Special Rapporteur on the Rights of Persons with Disabilities is required to cooperate closely with the Conference of States Parties to the Convention on the Rights

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Information on mandate holders’ activities in 2014, contained in the annexes to the report of their twenty-first Annual Meeting to the Human Rights Council59 provides a good idea of the assistance that ohchr provides to the Special Procedures. It should be recalled that mandate holders undertake these tasks with no un salary and usually part-time. During that year, mandate holders undertook 80 country visits to 60 States, and submitted reports on these visits to the Council, usually with the comments of the State concerned transmitted as an addendum.60 They transmitted 553 communications to 116 countries, a majority of which was prepared by two or more mandates, alleging individual human rights violations or raising concerns about laws, policies and programmes. In 2014, communications addressed the situation of 1,061 individuals, with mandate holders urging States to investigate the allegations they raised and, if confirmed, provide redress. A report containing communications sent by all mandate holders, and any answers received, compiled by ohchr, is transmitted to each session of the Council.61 From 10 November 2012 to 16 May 2014, support was provided to the Working Group on Enforced and Involuntary Disappearances to address 418 cases of enforced disappearance with 42 States.62 Also in 2014, mandate holders submitted 135 reports to the Human Rights Council on their themes, country visits and follow-up to earlier work, and 36 to the General Assembly. They issued 579 press and public statements, and provided comprehensive inputs into un and other processes, including through an open letter to the States Parties to the un Framework Convention on Climate Change transmitted to the Ad Hoc Working Group on the Durban

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of Persons with Disabilities and the Commission for Social Development, including by participating in their annual meetings upon request (unhrc Res 26/20 (14 July 2014) un Doc A/HRC/RES/26/20). In another example, the Special Rapporteur on Violence against Women orally reports to the Commission on the Status of Women annually (unhrc Res 23/25 (14 June 2013) A/HRC/RES/23/25). Information on the 2014 activities of Special Procedures, including visits, communications, report themes, statements and follow-up activities, is contained in annexes ii, v, vi, vii and ix to unhrc ‘Report on the Twenty-first Annual Meeting of Special Rapporteurs/ Representative, Independent Experts and Working Groups of the Special Procedures of the Human Rights Council, Including Updated Information on the Special Procedures’ (29 January 2015) un Doc A/HRC/28/41. unhrc Res 16/21 (n 1) annex, para 25. The communications report submitted to the 30th Session of the Council is contained in unhrc ‘Communications Report of Special Procedures’ (4 September 2015) un Doc A/HRC/30/27. unhrc ‘Report of the Working Group on Enforced and Involuntary Disappearances to the twenty-seventh session of the Human Rights Council’ (4 August 2014) un Doc A/HRC/27/49.

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Platform for Enhanced Action which met in Bonn from 20 to 25 October 2014. Contributions were also made by Special Procedures to the development of international human rights law, with these activities also being supported by ohchr. For example, in 2014, the Special Rapporteur on Trafficking in Persons, Especially Women and Children, issued ‘Basic Principles on the Rights to Effective Remedy for Victims of Trafficking in Persons’,63 and the Independent Expert on Human Rights and International Solidarity transmitted a ‘Draft Declaration on the Rights of Peoples and Individuals to International Solidarity’ to the Human Rights Council.64 At the Council’s request,65 the Working Group on Arbitrary Detention elaborated ‘Draft Basic Principles and Guidelines on Remedies and Procedures on the Rights of Anyone Deprived of Their Liberty to Bring Proceedings before a Court’,66 presented to its 30th Session in September 2015. Practical implementation tools were developed, including a comprehensive handbook on ‘Realizing the Human Rights to Water and Sanitation’, prepared by the Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation following an inclusive and comprehensive process of consultation. In addition to servicing the many Special Procedures assigned to it, ohchr’s spb supports the system of Special Procedures as whole. It coordinates their collaborative activities, such as joint communications and statements, and supports the formulation of common methodologies, for example, the communications report. spb develops and maintains databases, webpages and other tools, such as a weekly briefing note on mandate holders’ activities, to assist Special Procedures in their work and to inform stakeholders. It also designs and convenes induction sessions for new mandate holders, and provides advice on substantive, technical and logistical issues that may confront them. spb is the secretariat to the Annual Meeting of Special Procedures Mandate Holders, convened formally since 1994. The principal role of this meeting is to promote the visibility and standing of the Special Procedures system within the broader human rights framework. The meeting commissions and adopts 63 64 65 66

unga ‘Report of the Special Rapporteur on Trafficking in persons, especially women and children’, (6 August 2014) un Doc A/69/269, annex. unhrc ‘Report of the Independent Expert on human rights and solidarity’ (1 April 2014) un Doc A/HRC/26/34/Add.1, annex. unhrc ‘Report of the Special Rapporteur on Arbitrary Detention’ (17 July 2012) un Doc A/HRC/20/16. unhrc ‘United Nations Basic Principles and Guidelines on remedies and procedures on the right of anyone deprived of their liberty to bring proceedings before a court – Report of the Working Group on Arbitrary Detention’ (6 July 2015) un Doc A/HRC/30/37.

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tools to assist mandate holders, including the Manual of Operations of the Special Procedures of the Human Rights Council, the most recent edition of which was adopted at the fifteenth Annual Meeting in 2008.67 spb is the secretariat of the six-member Coordination Committee of Special Procedures, established at the Twelfth Annual Meeting in 2005. The Coordination Committee acts as a bridge between the mandate holders and ohchr, the un human rights framework and civil society, and plays a role in enhancing the effectiveness and independence of mandate holders and facilitating their work, including by sharing of experiences and information and proactively identifying issues of concern.68 It ensured that the perspective of mandate holders on the institution-building and five-year review of the Council was transmitted to that body and participates in Council Special Sessions and urgent debates in line with the latter’s conventions. It also seeks to enhance the participation of Special Procedures in Council activities and mechanisms, such as panels and commissions of inquiry. The Coordination Committee implements the Internal Advisory Procedure on practices and working methods of Special Procedures,69 adopted at the Fifteenth Annual Meeting, which allows for issues, including those relating to the Code of Conduct of Special Procedures, set out in the annex to Council Resolution 5/2,70 to be referred to the Coordination Committee for advice and guidance. 67

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unhrc ‘Report of the fifteenth annual meeting of special rapporteurs/representatives, independent experts and chairpersons of working groups of the Special Procedures of the Human Rights Council, Geneva, 23–27 June 2008’ (17 November 2008) un Doc A/HRC/10/24, paras 28–31. The Manual is a revision of the original Manual adopted in 1999 by the 6th Annual Meeting. unchr ‘Report of the United Nations High Commissioner for Human Rights and Follow-­ up to the World Conference on Human Rights: effective functioning of human right mechanisms’ (3 August 2005) un Doc E/CN.4/2006/4, paras 78–84; the outgoing Chair of the Coordination Committee, or another member, was added as an ex officio member at the 13th Annual Meeting: unhrc ‘Report of the thirteenth annual meeting of special rapporteurs, independent experts and chairpersons of working groups of the Commission on Human Rights and its advisory services programme (Geneva, 19–23 June 2006)’ (26 ­October 2006) un Doc A/HRC/4/43, para 14. For more on the Coordination Committee, see M’jid’s chapter in this collection. Coordination Committee of Special Procedures, ‘Internal Advisory Procedure to Review Practices and Working Methods’, 25 June 2008, available at accessed 10 August 2016. unhrc, ‘Code of Conduct for Special Procedures Mandate-holders of the Human Rights Council’, 18 June 2007, un Doc A/HRC/RES/5/2.

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With the support of ohchr, the Coordination Committee has sought to enhance the recognition of Special Procedures as a system. Significantly, for the first time, and after resistance from some States to recognition of the role of the Committee, the Report of the Annual Meeting of Special Procedures, including detailed information on mandate holders’ activities and state cooperation with them, was presented by the Coordination Committee Chairperson – the Special Procedures’ representative – to the 28th Session of the ­Council in March 2015.71 This was welcomed in a joint statement of 44 States ‘as a way to optimise regular interaction’72 between the Council and the S­ pecial ­Procedures mechanism. It is likely that the Committee’s tasks and influence will increase. As one example, since 2013, the Coordination Committee meets with the Secretary-General on the margins of the Third Committee (Social, Humanitarian and Cultural) of the General Assembly, to discuss the Special Procedures system. Many parts of ohchr also have a role in supporting Special Procedures. These include the Communications Section which assigns a dedicated media officer to assist mandate holders with relations with the press and press communications. The Human Rights Council Branch works with spb and fotcd with regard to mandate holders’ interface with the Council, as does ohchr’s New York Office in the context of the General Assembly, and other un ­Headquarters-based institutions. The Council Branch also has a key role in procedures for selection of mandate holders. It is the secretariat of the Consultative Group, made up of five members, appointed by each of the ­Council’s five Regional Groups, who serve in their personal capacity, tasked with ­considering nominees for Special Procedures vacancies, interviewing shortlisted ­candidates and recommending candidates it considers appropriate to the Council President, who presents a final list to the Council.73 As mandated by the Council, ohchr publicises vacancies and prepares, maintains and updates, in a standardised manner, a public list of eligible candidates who have applied for each vacancy. The level of secretariat support required for the selection has increased with the growth in the number of Special Procedures and because of the turn-over in mandate holders whose tenure in each mandate 71

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ohchr ‘François Crépeau, the Chairperson of the Coordination Committee, Presents the Annual Report of the Special Procedures to the Council’ (ohchr, 18 March 2015) acces­sed 26 June 2016. (n 31). For discussion of the significance of this development, see Power and Limon (n 52). unhrc Res 5/1 (n 56) annex, paras 47–52; unhrc Res 16/21 (n 1) annex, para 22.

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is limited to six years.74 In addition, those considering putting their candidatures forward often seek advice from the secretariat on the application process, which was strengthened by the Council during its five-year review to include more requirements for applicants.75 v

The Relationship between Special Procedures and ohchr

ohchr’s Management Plan 2014–17, and previous management plans,76 includes strengthening international human rights mechanisms amongst its six thematic priorities. It also features an attractive photograph of participants in the Twentieth Annual Meeting of Special Procedures held in Vienna in 2013 to mark the twentieth anniversary of the Vienna World Conference on Human Rights.77 However, although mandate holders receive substantive and technical support from the Office, as pointed out earlier, they are independent from the High Commissioner’s independent mandate to promote and protect all human rights in all parts of the world78 and from ohchr. Gaer has described the relationship between the High Commissioners from José Ayala Lasso to Navi Pillay and the Special Procedures in the 20 years between 1994 and 2004.79 In doing so, she considered the High Commissioners’ role as leader, partner, promoter or protector in relation to Special Procedures. She highlights that the five High Commissioners and the acting High Commissioner who served during that period all commended the Special Rapporteurs, often in very flattering language, for being an important source of information on human rights situations and violations, whose interventions could save lives, prevent violations and assist in the resolution of human rights situations. Gaer showed that the public support of the High Commissioners for the Special Procedures and the output of individual mandate holders are frequently strong.80 From time to time, they defended individual mandate holders from 74

unhrc Res 5/1 ibid, annex, para 45. In addition, there is some turn-over in mandate holders through resignation or change in the terms of the mandate. 75 unhrc Res 16/21 (n 1) para 22. 76 The first Plan (High Commissioner’s Strategic Management Plan) covered 2006–07. Thereafter, Plans were issued biennially until the current Plan, which covers four years. 77 ‘ohchr Management Plan 2014–2017’ (n 38) 30. 78 (n 35). 79 F Gaer, ‘The High Commissioners and the Special Procedures: Colleagues and Competitors’, in F Gaer and CL Broecker (eds), The United Nations High Commissioner for Human Rights, Conscience for the World (Martinus Nijhoff 2014) 133. 80 Ibid.

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attacks by States and others,81 although the independence of these mandate holders, and that of Special Procedures as a whole, from the High Commissioner and her/his Office was frequently invoked, sometimes to disassociate High Commissioners and ohchr from the statements or actions of mandate holders.82 Since his appointment, High Commissioner Zeid has also spoken of the crucial role of the Special Procedures,83 and publicly defended individual mandate holders, most notably Yanghee Lee, the Special Rapporteur on the Situation of Human Rights in Myanmar, who was subjected to a deeply offensive and sexist verbal attack during one of her country visits.84 As Gaer pointed out, however, the High Commissioners’ public expression of support for Special Procedures has yet to translate into a consistent mutually reinforcing collaboration which responds to human rights situations on the ground and improves human rights enjoyment generally. She noted that, although the High Commissioners’ briefings are likely to contain Special Procedures’ information (and vice versa),85 there appears to be no consistent practice of High Commissioners’ consulting with them, in particular prior to visits. There is also limited evidence of High Commissioners’ reinforcing their thematic or country-specific recommendations, in press releases and encounters after visits to States.86 She points out that mandate holders complain that High Commissioners have not consulted with them directly on country visits, thematic issues, or before or after they issue statements in these contexts, and, in the past, several have called for a more robust response to personal attacks against them.87 High C ­ ommissioner Pillay is praised for giving relevant Special 81 82

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For example, Mary Robinson, as detailed in Gaer (n 79) 139; Bertie Ramcharan, as detailed in ibid 144; and Lousie Arbour, as detailed in ibid 147. Gaer (n 79). For example, in regard to Jean Ziegler, Special Rapporteur on the Right to Food, and Richard Falk, Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, 146 and 148–49. ohchr ‘Remarks by the High Commissioner for Human Rights to the Twenty-first Annual Meeting of Special Rapporteurs, Independent Experts and Chairpersons of Working Groups of the Special Procedures of the Human Rights Council’ (ohchr, 3 October 2014)

accessed 10 March 2016. ohchr ‘Comment by un High Commissioner for Human Rights Zeid Ra’ad Al Hussein on the Abuse of the Special Rapporteur on Human Rights in Myanmar, Yanghee Lee’ (ohchr, 21 January 2015) accessed 10 March 2016. In the author’s experience, the majority of briefings contain this information. Gaer (n 79) 149–51. Ibid 148–50. See also unhrc ‘Report of the twentieth annual meeting of Special Rapporteurs/Representatives, Independent Experts and Chairpersons of Working Groups of

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­ apporteurs a key role in the series of workshops leading to the adoption of R the ‘Rabat Plan of Action on the Prohibition of Advocacy of National, Racial or Religious Hatred that Constitutes Incitement to Discrimination, Hostility or Violence’.88 But collaboration between High Commissioners and Special Procedures has evolved since the first High Commissioner began his work in 1994. During their Nineteenth Annual Meeting, in 2012, High Commissioner Pillay assured mandate holders that she consistently addressed cooperation with Special Procedures and follow-up to their recommendations in her interaction with States, reminding them of their commitments to issue invitations, facilitate country visits, respond to communications and protect those cooperating with them from reprisals.89 At the Twentieth Annual Meeting, she recalled that she had solicited inputs from mandate holders during the process leading to the formulation of the 2014–17 Management Plan.90 High Commissioner Zeid has undertaken to deepen collaboration,91 and it is hoped that a systematic approach and tools can be developed to achieve this. In particular, Gaer’s recommendation that the High Commissioner bring one or more mandate holders with him on his visits to New York and other venues, including countries, to demonstrate that they are a valued resource of the un’s human rights programme92 should be implemented. Special Rapporteurs have substantive and country-specific knowledge and garner enormous

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the Special Procedures of the Human Rights Council (Vienna, 24–28 June 2013) – Note by the United Nations High Commissioner for Human Rights’ (22 July 2013) un Doc A/HRC/24/55, para 36. ‘Rabat Plan of Action on the Prohibition of Advocacy of National, Racial or Religious Hatred that Constitutes Incitement to Discrimination, Hostility or Violence: conclusions and recommendations emanating from the four regional expert workshops organised by ohchr, in 2011, and adopted by experts in Rabat, Morocco on 5 October 2012’ (ohchr, 5 October 2012) accessed 10 March 2016. unhrc ‘Report of the nineteenth annual meeting of Special Rapporteurs/Representatives, Independent Experts and Chairpersons of Working Groups of the Special Procedures of the Human Rights Council’ (9 July 2012) un Doc A/HRC/21/51, para 16. unhrc (n 87) para 21. ohchr ‘Remarks by the High Commissioner for Human Rights to the Twenty-first Annual Meeting of Special Rapporteurs, Independent Experts and Chairpersons of Working Groups of the Special Procedures of the Human Rights Council’ (ohchr, 3 October 2014)

accessed 11 March 2016. Gaer (n 79) 153. This is among a number of proposals she makes to deepen the collaboration between the High Commissioner and the Special Procedures, while preserving the independence of both.

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respect through their work and interactions with States and others, most importantly, those at country level. High Commissioners need support to carry out their independent and complex tasks. From the author’s perspective, Special Procedures are more than well placed to provide such support, while at the same time preserving their independence. If the relationship between the High Commissioner and the Special Procedures is singular, that between the staff of ohchr responsible for the dayto-day support of Special Procedures and mandate holders can be even more complex. Those staff are members of the Secretariat, the subject of Chapter xv of the Charter of the United Nations. They are accountable to the High Commissioner and, ultimately, the Secretary-General. Their conduct is also governed by a myriad of un rules and regulations.93 Although ohchr staff is assigned to one or more mandate holders, they are neither their staff, nor personal assistants. As they are staff of the un, most have duties beyond supporting the mandate holders to whom they are assigned. This may include providing direct assistance to the High Commissioner. As they are career civil servants, they are interested in personal development and may move to other functions to further their careers. Similarly, as part of the un Secretariat they may be reassigned to other duties by the Secretary-General or the High Commissioner. Accordingly, staff working with Special Procedures will ultimately leave the mandate to which they are assigned, sometimes sooner rather than later, as well as the spb. Staff members who work with mandate holders are in daily contact with them, and usually travel with them on country and other visits to provide assistance. They also provide them with significant input, including drafts and support for their reports and other outputs. These staff may occupy junior un posts but they are recruited through rigorous un staffing procedures, and have the substantive, technical, and language skills and political tools to provide ­appropriate support for mandate holders. Through their un experience, including with mandate holders and other experts, these staff also acquire the institutional memory which allows for individual Special Procedures to build on the achievements of their predecessors Most staff enjoy working with ­Special Procedures, whose function they consider essential and ‘special’.94 In general they learn much from the expert they support and grow from the experience of working closely with her or him.

93 94

For relevant documents, see accessed 11 March 2016. Limon and Piccone (n 21) 22.

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Clarification of the nature of working relationship experts and ohchr staff is set out in guiding principles regarding the working relations between Special Procedures mandate holders and ohchr staff completed in 2002, which is annexed to the Manual of Operations of the Special Procedures.95 Surveys and commentary on Special Procedures indicate that the majority of experts rate the effectiveness of their working relationship with ohchr staff highly.96 However, concerns are sometimes raised. Piccone states that some Special Rapporteurs complain ‘bitterly’ that ohchr fails to protect them from States’ attempts to restrict their independence, and interfere with their work by withholding information or trying to soften their public output. He also reports that ohchr staff, including in the field, have been disappointed with the lack of professionalism and behaviour of some mandate holders.97 Many of the issues raised concerning the staff/mandate relationship are directly related to the financial resources within ohchr available to support Special Procedures, a topic which is addressed in the following section. In 2009, for example, on the basis of a survey of 56 current and former mandate holders, which attracted 20 responses (36 per cent), oios reported that mandate holders cited a need for more ohchr staff to be assigned, in a dedicated manner to support their substantive work. They also called for better logistical support. Only a minority of respondents rated the quality of the analytical assistance provided as poor, but the majority considered that significant improvement was required in processing communications and follow-up to mandate holders’ recommendations.98 Similarly, Special Procedures interviewed by Limon and Piccone for their 2014 Policy Report considered insufficient staff and high turnover amongst them to be key obstacles to the fulfilment of their mandates.99 In his 2012 monograph, Piccone was harsher, suggesting that difficulties in the relationship between mandate holders and ohchr staff ‘tell the story of divided loyalties, conflicts of interests, and ambiguous divisions of labor’. He also pointed at rotation for professional development and limited 95 96

97 98 99

Manual (n 67). unga ‘Efficiency of the Implementation of the Mandate of the Office of the United Nations High Commissioner for Human Rights: Report of the Office of Internal Oversight Services’ (30 July 2009) un Doc A/64/203, para 48; ohchr ‘Review of Management and Administration of the Office of the United Nations High Commissioner for Human Rights’ (2014) un Doc JIU/REP/2014/7, para 305 reports that 15.8 per cent of 48 responses to a survey of 247 treaty body experts and Special Procedures mandate holders rated the working relationship with ohchr as poor. See also Limon and Piccone (n 21) 22. Piccone (n 32) 58–59. oios report (n 96) paras 49–50. See also jiu report (n 96) paras 304–05. Limon and Piccone (n 21) 22.

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staff training as factors undermining the quality of the services provided to rapporteurs.100 Related to ohchr resource constraints is the practice of some mandate holders to use individuals outside ohchr, such as research assistants, staff of civil society organisations or staff dedicated to mandate work entirely, to help support their activities. This is understandable, and there is often very good collaboration between ohchr staff and what are often described as ‘external assistants’. It is also understandable that ohchr staff may be disappointed if they consider that their function is considered to be limited to organising logistics and resolving political issues with States and others, including those which may arise because of the activities of non-un personnel. vi

Resources

As noted above a key factor affecting the relationship of mandate holders and ohchr, and their independence and efficiency, are the financial resources available to support ohchr as a whole and the Special Procedures in particular. Around 40 per cent of the whole of ohchr’s budget is provided by the un regular budget, approved by the General Assembly every two years. This is drawn from assessed contributions from each Member and non-Member State.101 The balance of 60 per cent is provided through voluntary contributions, predominantly from States. In 2014, ohchr received a little over us$100,000 million from the regular budget.102 It also received us$123.7 million from 74 donors, including 66 States, with 53 per cent of this sum being earmarked for particular activities ­undertaken by ohchr. Although some of these resources were earmarked for Special Procedures,103 almost 60 per cent of those contributions were used to support ohchr’s activities in the field, such as country offices and other as these receive limited funding through the regular budget, and accordingly did not benefit Special Procedures directly. 100 Piccone (n 32) 59. 101 ohchr Report 2014 (n 18) 62 and 66; un Secretariat ‘Assessment of Member States’ Contributions to the United Nations Regular Budget for the year 2015’ (29 December 2014) un Doc ST/ADM/SER.B/910; ‘Assessment of Contributions by Non-Member States Towards the 2015 Expenses of the United Nations for their Participation in United Nations Activities’ (29 December 2014) un Doc ST/ADM/SER.B/911. 102 The regular budget allocation is assessed over a biennium. 103 ohchr Report 2014 (n 18) 63 and 105–23.

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High Commissioners are consistent in expressing commitment to providing the same level of financial support to each Special Procedure, and ensuring the predictability of this support through the un regular budget.104 As each mandate is established or renewed therefore, ohchr works with the un Office of Programme Planning, Budget and Accounts (oppba), to prepare a statement of programme budget implications (pbi) containing a description and costing of the human and financial resources required to support the mandate which, according to un rules, must be provided to the Council before it adopts any resolution with financial implications.105 The statement, provided to the Council, and uploaded on its extranet, and available to those interested, is based on the terms of the resolution establishing or extending the mandate. This means that although there are standard costings for Working Groups, thematic and geographical mandates, pbis differ. The budgetary implications of the resolution are ultimately submitted, to the General Assembly for approval through its Administrative and Budgetary (Fifth) Committee. This body, advised by the Advisory Committee on Administrative and Budgetary Questions, is responsible for un budgetary and financial issues.106 In general the amounts identified in the pbi are approved, although the ­Assembly may approve a lower level of financial support, or in a different ­manner than that envisaged in the pbi. Biennially, also, as the regular budget submission is prepared, ohchr seeks realistic regular budget funding for Special Procedures, particularly as older mandates, and even those which are more recent, such as on Cultural Rights, on Sale of Children, and on Slavery, were established without resources for staff. Others were initially allocated such funds, but these were trimmed or lost because of reductions in the un budget as a whole. Throughout these budgetary processes, ohchr’s submissions for financing, including of Special Procedures, are considered along with those from other parts of the un. Given the un’s resource constraints, ohchr’s supporting arguments may sometimes not succeed. Special Procedures receive support from various parts of ohchr, and other parts of the un, such as conference services and the un Department of P ­ ublic 104 For example, High Commissioner Zeid’s remarks to the twenty-first Annual Meeting of Special Rapporteurs, Independent Experts and Chairpersons of Working Groups of the Human Rights Council (n 91). 105 Rules of Procedure of the General Assembly, Rule 153; Regulations and Rules Governing Programme Planning, the Programme Aspects of the Budget and Evaluation (19 April 2000) un Doc ST/SGB/2000/8, Regulation 5.9. 106 Resource requirements for human rights mandates, ohchr Informal Paper 2014, accessed 10 March 2016.

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Information. un accounting systems are not set up to track expenditures or resources by mandate, thus exact financial data on the resources available to each mandate, especially allocation from the regular budget, are difficult to determine. However, financial data on the amount available to ohchr for staffing and other requirements of the thematic mandates that it supports are reported annually through the ohchr Report. In 2014, the amount available to the Special Procedures Branch to meet the needs of 38 thematic Special Procedures, the two related Forums it organises,107 and the needs of the system of Special Procedures amounted to us$18,690,862. This was made up of a regular budget allotment of us$12,368,400, and us$6,322,462 in voluntary contributions. Of the latter, 24.5 per cent was allocated to the Branch by ohchr from funds provided by donors without earmarking to any activity, 51.8 per cent was earmarked to the Branch to support all the mandates for which it was responsible, and 23.7 per cent was tightly earmarked for specific mandates in line with the domestic priorities of the donor concerned.108 All political groups make clear in statements to the General Assembly, the Human Rights Council and in other contexts that Special Procedures should receive adequate and equitable funding, and equal priority should be accorded to civil and political rights and economic, social and cultural rights mandates reflective of their specific needs and any additional tasks they may be mandated to perform in resolutions adopted by the Council or the Assembly. They, and other stakeholders, also make clear that this funding should be provided through the un regular budget to ensure financial predictability and the independence of mandate holders.109 The section on resources and funding in the Chapter on Special Procedures in the 2011 Outcome of the review of the work and functioning of the United Nations Human Rights Council,110 reflecting the many discussions and written inputs relating to the open-ended intergovernmental Working Group on the Council Review,111 as well as informal meetings on funding for Special Procedures, is clear. It recognises the importance of ensuring the provision of adequate and equitable funding, with equal 107 108 109 110

Forum on Minority Issues and Forum on Business and Human Rights. ohchr Report 2014 (n 18) 93. Limon and Piccone (n 21) 21–22. A/HRC/RES/16/21 (n 1) annex, paras 31–34. The Council resolution was adopted by unga Res 65/281 (20 July 2011) un Doc A/RES/65/281. 111 Established in unhrc Res 12/1 ‘Open-ended Working Group on the review of the hrc and functioning’ (1 October 2009) un Doc A/HRC/RES/12/1. See the ‘Report of the open-ended intergovernmental working group on the review of the work and functioning of the Human Rights Council’ (n 20) Chapter ii, Part E, Funding/Resources, 80–84.

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priority accorded to civil and political rights and economic, social and cultural rights and the right to development to support all Special Procedures mandate holders according to their specific needs, including additional tasks entrusted to them by the General Assembly, and indicates that this should be achieved through the regular budget. It also requests the Secretary-General to ensure the availability of adequate resources within the regular budget of ohchr to support the full implementation by Special Procedures mandate holders of their mandates. Funding for Special Procedures was taken up by the un Board of Auditors in its report on the biennium ending 31 December 2011. This states that, as ‘mandated activities, implemented by independent experts or special rapporteurs appointed by the Council, these Special Procedures mechanisms should be fully funded from the regular budget of the United Nations. This is critical to maintain real and perceived independence in the delivery of their activities, so as to maintain the trust of all stakeholders’.112 To address these issues, the Board recommended that ohchr ‘(a) in collaboration with the oppba, seek ways to reduce the reliance of mandate holders on extra-budgetary funding and other forms of earmarked or un-earmarked support; [and] (b) seek ways in which to demonstrate more robustly that mandated activities regarding Special Procedures are undertaken independently, are of equal importance, and not unduly influenced by the source of funds’.113 Tight earmarking of extra-budgetary funds by donors can create political tensions as States which do not provide financial resources to mandates, or earmark resources to specific mandates only, may not consider the donor’s priorities to be appropriate. As reflected in the Board of Auditors’ report, suggestions are sometimes made by States and others that such funding may compromise the independence of mandate holders as they may be, or be perceived to be, inclined to pursue the activities funded by the donor, rather than their full mandate.114 Suggestions are also made that these funds are predominantly directed to civil and political, rather than economic, social and cultural rights mandates, thereby allowing the former mandates to undertake more activities,115 and accordingly prioritising those rights. ohchr’s Annual 112 unga ‘Financial Report and Audited Financial Statements for the biennium ended 31 December 2011 and Report of the Board of Auditors’ (2012) un Doc A/67/5 (Vol i), para 67. 113 Ibid para 70. 114 For more on the issue of resources and mandate holder independence, see Winkler and de Albuquerque’s contribution to this collection. 115 These concerns are summarised in the unga ‘Report of the Board of Auditors’ (n 111) paras 68–69.

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Reports do not support these views. Rather, they show that the level of highly earmarked funds directed to individual Special Procedures is usually low, and the contributions are spread across a number of thematic mandates. At the time of writing, the latest available figures were to be found in the 2014 Report. These show that, in that year, us$217,552 was earmarked to the Working Group on Enforced and Involuntary Disappearances; us$137,552 to the Working Group on Arbitrary Detention; us$66,845 to the mandate on Summary Executions; us$68,399 to Freedom of Religion or Belief; and us$50,000 to Racism, Xenophobia and Related Issues. Contributions of us$143,288 were made to the mandates on Trafficking; us$68,399 to water and sanitation; us$50,000 each to sale of children, the Working Group on the use of mercen­ aries, and the mandate on Minority Issues; and us$48,918 to migrants. Business and human rights attracted U$306,544 for the Working Group, the Forum on business and human rights and the African Forum on that subject. The Special Fund on participation of civil society in the Forums on Minority Issues, business and human rights and the Social Forum (which is serviced by the Research and Right to Development Division) received us$50,000, and a further us$13,175 was transmitted to that Fund specifically for the Forum on Minority Issues. The mandate on the promotion of truth, justice and reparations was also provided with support amounting to us$124, 439.116 In sum, analysis of these contributions, and those made in earlier years, which have reflected other priorities, does not support the view that particular categories of rights are preferred by donors. Mandates are flexible and not easy to categorise neatly. Individual mandate holders are also entitled to interpret the terms of their mandates, and most do so in light the 1993 Vienna Declaration and Programme of Action’s clarification that all human rights are universal, indivisible and interdependent.117 Certainly, full funding of Special Procedures through the regular budget is desirable. However, it is unlikely to materialise in the short-, medium- or even long-term. Here it is important to recognise that currently, the un human rights programme, receives only a little over 3 per cent of its funding through the un regular budget. This is despite the fact that the 2005 World Summit outcome recognised human rights as one of the three pillars of the un,118 and that this recognition is reiterated frequently in statements of Member States. 116 ohchr Report 2014 (n 18) 93. 117 Vienna Declaration and Programme of Action (adopted by the World Conference on Human Rights in Vienna on 25 June 1993) Part i, para 5 accessed 10 March 2016. 118 unga Res 60/1 ‘World Summit Outcome’ (24 October 2005) un Doc A/RES/60/1, para 9.

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­Accordingly, unless the approach of States in the Council and the Fifth Committee radically changes, estimates of budgetary requirements of Special Procedures and ensuing allocations are unlikely to cover the many activities mandate holders now carry out in fulfilment of their task. Realistically, therefore, paragraph 33 of the Council Review Outcome recognises the continued need for extra-budgetary funding for Special Procedures, and welcomes contributions from Member States, although emphasises that these should be un-­ earmarked. It also highlighted the need for full transparency in funding in this context.119 The reality is that most extra-budgetary contributions are un-earmarked and the amount of tightly earmarked extra-budgetary resources individual Special Procedures receive is small, and aimed to facilitate the task of the mandate holder, rather than influence her or his delivery of the mandate. Thus, the concern that such funding may compromise mandate holders’ independence is not borne out in practice. In addition, donations do not include conditions which may affect the independence of the mandate holder. There is also full transparency in relation to contributions received through ohchr to support Special Procedures. These are reported in ohchr’s very comprehensive Annual Report (which includes a compact disk with very detailed information) and other documents. The Annual Report is presented each year by the High Commissioner to Member States and other stakeholders in informal meetings. Financial information is also made available to those interested by ohchr regularly. Just as tight earmarking of extra-budgetary resources to particular mandates attracts scrutiny and some concern, the provision of staffing and other support to particular Special Procedures from sources outside ohchr and the un also engenders disquiet. A significant number of mandate holders are employed in the academic sector, predominantly in institutions located in the Global North, or has some connection to academia, think tanks and similar organisations.120 This is unsurprising given the time commitment required of mandate holders and that they work pro bono only receiving an allowance to meet their subsistence needs when in function. Frequently, institutions which employ mandate holders provide support in kind, such as administrative and research assistance. In some cases, the mandate holder or her or his institution may attract funding related to the mandate from States or other donors. Mandate holders may also seek and to raise funds, which are sometimes substantial, to support their tasks as a Special Procedure. Here, it is to be noted that 119 un Doc A/HRC/RES/16/21 (n 1) annex, paras 33–34. 120 Limon and Piccone (n 21) 13–14.

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the Manual of Operations of the Special Procedures makes clear that seeking financial and other support from a wide range of actors is consistent with their independence.121 A majority of mandate holders discloses the outside support they receive to ohchr, but there is no requirement that this be reported to the Office. In fact, such support may not be known to it. Similarly, neither mandate holders nor ohchr has an obligation to report this support to the Human Rights Council, individual States and other stakeholders. Receipt of such support, be it financial or in kind, from outside un frameworks, is cited by some States and others as another factor, beyond extra-budgetary contributions to ohchr, which may result in inequality amongst Special Procedures and, compromise their independence and impartiality by suggesting that conditions might be attached to the contribution. Official un reports have addressed these concerns. For example, in its report on the un biennium ending 31 December 2011, referred to above, the un Board of Auditors, aware that some mandate holders received support from non-un sources, such as institutions and governments, and that there was no obligation on them to disclose such financial or in-kind support, stated that it considered ‘the absence of clear disclosures could put in doubt the perceived independence of mandate holders’.122 To address this concern, it recommended that ohchr, in the interests of transparency, propose to the Human Rights Council that mandate holders be required to disclose all sources of finding and any conditions attached to them.123 The Board’s view was echoed by un Joint Inspection Unit (jiu) Inspector Gopinathan Achamkulangare, formerly Ambassador of India to the United Nations in Geneva, who acted as one of the facilitators appointed by the Council President to assist in the conduct of the 2010/11 Council Review in the report of his review of the management and administration of ohchr. The jiu Review, conducted pursuant to a request of the Council to the jiu in its Resolution 22/2, was submitted to the 28th Session of the Council in March 2015.124 It noted that ohchr has made numerous requests for increase in regular budget resources to reduce the need for Special Procedures to seek assistance to 121 122 123 124

Manual (n 67) para 11. Ibid para 68. Ibid paras 68 and 70. JIU/REP/2014/7 (n 96); unga ‘Review of the Management and Administration of the Office of the United Nations High Commissioner for Human Rights’ (9 March 2015) un Doc A/70/68. A note by the Secretary-General responding to the review, which does not address funding of Special Procedures, is contained in un Doc A/70/68/Add.1.

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allow them to carry out even their core mandated activities and makes clear that regular budget resources should be increased to cover these activities adequately.125 It pointed out that: the risk of conflict of interest of Special Procedures mandate holders arises in cases where Special Procedures receive or raise funds from third parties, for instance, ngos, universities, foundations and academic institutions, for their mandate. The receipt of funds from a third party is often not reported to either the Human Rights Council and/or any other legislative body. Such practices raise concerns regarding the independence of the Special Procedures mandate holders and their function. Even if, in most cases, such practice may only create a perception of (potential) conflict of interest, it should be addressed, since perceptions could damage the independence of the mandate holder and his or her function. The fact that the Coordination Committee of Special Procedures receives such information may not be sufficient to assuage concerns. Closely related to this phenomenon is the perception of uneven and inequitable funding of mandates, with those with access to funds having an unfair advantage over those who do not.126 Referring to the Board of Auditors’ report and building on its recommendations, the Inspector concluded that ohchr should initiate steps to require mandate holders, effective from 2015, to make full disclosure to the Council of all forms of support, including funding and any conditions attached to them, that they receive from sources other than ohchr so as to increase transparency and independence and dispel misgivings. In addition, he concluded that ohchr should assist Special Procedures mandate holders to set up policies, procedures and mechanisms that address the risks of potential conflict of interest that could be perceived as having an adverse impact on their independence and/or integrity, and to promote greater transparency. He suggested that this could be done through provision of advice and support to the Coordination Committee and/or as suggested by Member States.127 The Inspector’s conclusions on funding for Special Procedures were not referred to by the Council when it discussed the jiu review report.128 However, 125 126 127 128

JIU/REP/2014/7 (n 96) para 315. Ibid para 316. Ibid paras 319–20. un webcast of the 27th Meeting of the 28th Session of the Human Rights Council (13 March 2015) accessed 10 March 2016. The Inspector introduced his report to the 16th Meeting of the General Assembly’s Fifth Committee on 19 November 2015. Limon and Piccone (n 21) 22. unhrc (n 87) para 35. Report of the Twenty-Second Annual Meeting of Special Procedures Mandate Holders (n 2) Annex x. ‘Secretary-General’s Remarks to the Human Rights Council – Statement’ (un, 25 January 2011) accessed 11 February 2016. ‘Secretary-General’s Message to the Third Session of the Human Rights Council [delivered by Mrs Louise Arbour, High Commissioner for Human Rights] – Statement’ (un, 29 November 2006) accessed 11 February 2016. ‘Secretary-General’s Remarks to the Opening of the Seventh Session of the Human Rights Council’ (un, 3 March 2008) accessed 28 March 2016.

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In 2013 the Secretary-General launched a Human Rights up Front Action Plan (HRuF) to strengthen the ability of the un system to prevent and respond to serious human rights violations in complex crises by bringing human rights protection to the centre of its work. The Plan is directed towards making human rights information and analyses rapidly available so they can form the basis of system-wide strategies and responses to impending violations. A crucial part of the Plan is a common un information management system on violations of international human rights and humanitarian law.135 The Special Procedures system is well placed to identify patterns of human rights violations, in particular discrimination, which can serve as early warning of impending crises which can be averted by appropriate interventions. Perhaps the most well-known and tragic example of this capacity is the information conveyed in the report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions following his country visit to Rwanda in April 1993. This report, made public in August 1993, indicated that the specific targeting of members of ethnic Tutsis solely because they belonged to a specific ethnic group might constitute genocide.136 Despite this and other warnings, the international community failed to take action to prevent the genocide which occurred the following year. The situation in the Central African Republic also provides a good case study. In 2007, the then Representative of the Secretary-General on the Human Rights of Internally Displaced Persons visited the Central African Republic and highlighted the lack of capacity of the security forces to protect the population adequately and warned that the humanitarian crisis was particularly affecting the displaced population.137 The security vacuum was one of the central elements of the findings of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions following his visit to the Central African Republic in 2008.138 These issues were also flagged in a follow-up report in 2010, in which 135 Deputy Secretary-General, ‘Informal Remarks at Briefing of the General Assembly on Rights up Front’ (un, 17 December 2013) accessed 11 February 2016. 136 unchr ‘Report by Mr BW Ndiaye, Special Rapporteur, on his Mission to Rwanda from 8 to 17 April 1993’ (11 August 1993) un Doc E/CN.4/1994/7/Add.1. 137 unhrc ‘Report of the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, Walter Kälin’ (18 April 2008) un Doc A/HRC/8/6/Add.1. Similar concerns were raised in a follow-up report: unhrc ‘Report of the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons, Walter Kälin’ (18 January 2011) un Doc A/HRC/16/43/Add.4. 138 unhrc ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston’ (27 May 2009) un Doc A/HRC/11/2/Add.3.

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the Special Rapporteur made clear that security forces were unable to provide adequate protection for civilians particularly outside of the capital. In the absence of genuine state protection, the Special Rapporteur found that villagers were increasingly organising themselves into ad hoc self-defence groups and that ethnically motivated acts of violence were on the rise. He also stated that impunity for killings was pervasive regardless of the perpetrators (security forces, private individuals, rebels) or the context (military operations, routine law enforcement or detention).139 There are many other examples of Special Procedures providing early warning of tragic human rights situations in their country and thematic reports, press releases and communications, but their information does not appear to generate action, in particular by the Security Council. In his remarks to the Twenty-First Annual Meeting of Special Procedures in 2014, High Commissioner Zeid indicated that he wished to collaborate with Special Procedures in respect of the inter-relationship between human rights and peace and security and he would convey the message that it is important for the Security Council to hear from relevant Special Procedures. Certainly he must be aware that this has been a feature in the past, in formal sessions and informal interactions140 and also since he took up his post.141 At the same meeting, Deputy Secretary-General Eliasson invited mandate holders to develop a more institutional way to contribute to HRuF, and its implementation.142 Ways to respond to this invitation are being discussed by mandate holders, amongst themselves and with the Executive Office of the Secretary-General. If Special Procedures are the ‘vanguard mechanisms for early detection’ the wider un Secretariat and un intergovernmental and expert bodies and mechanisms need their information and perspectives. Their reports are based on their substantive expertise, impartiality and independence, as well as their interactions with victims and witnesses during visits and in many other contexts (such as through the information provided to generate communications). 139 unhrc ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston’ (19 May 2010) un Doc A/HRC/14/24/Add.5. 140 J Breen, ‘Revitalizing the United Nations Special Procedures Mechanisms as a Means of Achieving and Maintaining International Peace and Security’ (2008) 12 Max Planck Yearbook of un Law 177. 141 For example, the Special Rapporteur on the Human Rights of Internally Displaced Persons addressed the Security Council during its debate on women, peace and security on 28 October 2014: ‘In Presidential Statement, Security Council Urges States to Bolster Protection, Empowerment of Displaced Women, Girls’ (28 October 2014) un Doc SC/11617 accessed 11 February 2016. 142 un Doc A/HRC/28/41 (n 59) paras 76–77.

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They ­constitute the human face of the un, and can provide first-hand testimony gained through their official visits which feature discussions with States, civil society and individuals. Failure to exploit this important mechanism’s potential to the full can only contribute to the un failing to identify and respond appropriately and in real time to early warning of human rights violations.143 viii

Conclusion

Most of the not very extensive literature on Special Procedures focusses on maintenance of their independence, the 2007 Code of Conduct, and enhancing their interaction with the Human Rights Council and other un bodies, such as the Security Council. Strengthening their impact on the ground, including by encouraging States to cooperate with them in a candid and genuine manner, and ways to ensure the full potential of their expertise and knowledge is capitalised on by un and other entities, in particular at the country level, is also addressed. This chapter has addressed several institutional issues which have significant impact on the effectiveness of Special Procedures. At the centre are financial and human resources. The author’s view, shared by many, is that if properly resourced, particularly in relation to follow-up, discussions of ‘proliferation’ of mandates would be irrelevant. This would also be the case for those raising the issue of transparency in relation to extra-budgetary funding and external resources. Most of the tensions surrounding the relationship between ohchr and mandate holders, generally arising because of the unpredictability of staffing and perceived inequality of resourcing amongst mandate holders, would also be diffused. Most importantly, mandate holders’ independence would be secure and beyond reproach. This would confirm that the system of Special Procedures enjoyed the status of an indispensable component of the human rights system, which although distinct, complements and reinforces other intergovernmental and expert human rights mechanisms.

143 See press release on roundtable on Special Procedures’ early warning function: ohchr ‘Human Rights Experts have a Key Role in Early Warning’ (ohchr, 23 November 2009) accessed 11 February 2016.

chapter 3

Picking and Choosing? Country Visits by Thematic Special Procedures Felice D. Gaer Abstract At the time of its creation, the Human Rights Council was instructed by the General Assembly to be guided by principles of ‘universality, impartiality,…and cooperation’ (unga Resolution 60/251 (3 April 2006)). Those principles have been tested time and again in connection with States’ acceptance or rejection of pertinent country visits from the Council’s Special Procedures mandate holders. This chapter examines the degree to which country visits by thematic rapporteurs are a sign of States cooperating rather than complying with Special Procedures – and discusses how some visits can, instead, be evidence of State efforts to prevent critical human rights scrutiny. The chapter examines which countries have been visited and not been visited, and by which mandates. Five case studies – China, Russia, Algeria, Iran, and Cuba – are used to explore key issues such as pledges made by States at the time of their election to the Human Rights Council, the timing of visits, the acceptance of visits from specific mandate holders, the number of visits accepted, and State responses to visits made. The author also outlines proposals aimed at the prevention of future patterns of ‘picking and choosing’ on the part of States.

Keywords country visits – standing invitations – cooperation – politicisation – universality – ­geography – regional groups – Universal Periodic Review

i

Introduction

In 2005, United Nations Secretary-General Kofi Annan criticised States for seeking election to the Commission on Human Rights (chr) to shield ­themselves

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004304703_005

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from scrutiny.1 He recommended replacing the Commission with a new Human Rights Council (hrc). In the resolution creating the new body, Member States declared that the Council’s work ‘shall be guided by the principles of universality, impartiality … and cooperation’; its members ‘shall uphold the highest standards … [and] shall fully cooperate with the Council’. All countries would be reviewed by the new Universal Periodic Review (upr) mechanism.2 Many hoped that upr would bring scrutiny and applicability of human rights standards for all. The hrc’s emphasis on universality has focussed inter alia on Special Procedures. Because they bring independent information into the world body’s deliberations about which States are and are not upholding standards proclaimed in international human rights instruments, Special Procedures, as a group, have been called the ‘eyes and ears’ of the un human rights system.3 Thematic Special Procedures, the subject of this chapter, are asked to be active – to seek and receive this information from various sources, governmental and non-governmental, and to respond effectively. In obtaining this information, these expert mechanisms are not limited to the inside of a un conference room or to utilising only the data in States’ reports or complainants’ petitions. Mandate holders have developed a practice of visiting countries in person to examine and assess real-world conditions relevant to their mandate, thus moving away from writing only about theory and the law. Through country visits, thematic mandate holders can compare how States address similar human rights problems, using a common informational base and set of criteria to examine their compliance with relevant human rights norms. Country visits provide mandate holders with a way to observe practices and facts relevant to their mandates, including a possibility of examining complaints first-hand, and to communicate concerns and recommendations for amelioration to responsible public officials.4 1 un General Assembly (unga) ‘In larger freedom: Towards development, security and human rights for all: Report of the Secretary-General’ (21 March 2005) un Doc A/59/2005. 2 un General Assembly (unga) Resolution 60/251 (3 April 2006) un Doc A/Res/60/251. 3 Office of the un High Commissioner for Human Rights (ohchr) ‘United Nations SecretaryGeneral Ban Ki-moon addresses Human Rights Council: Ban Ki-moon Says Special Procedures Allow Human Rights Council to Shine Light on Abuses Everywhere’ (ohchr, 25 January 2011) accessed 10 February 2016. 4 For example, according to un Human Rights Council (unhrc) ‘Communications Report Special Procedures: Communications Sent, 1 March to 31 March 2015; Replies Received, 1 May to 31 July 2015’ (4 September 2015) un Doc A/HRC/30/27, from 2006 through to mid-2015, countries have received thousands of communications from more than 50 mandate ­holders.

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During country visits, fact-finding and fact-checking are often key aims of mandate holders5 who have been showered with large numbers of communications about individual cases.6 Former Special Rapporteur on torture Nigel Rodley has explained that the country visits provide added value, specifically that they ‘make possible substantive uncovering of those aspects of the reality that governments prefer to conceal and which, indeed, may be unknown to important higher level decision makers, whether by preference or inadvertence’.7 One of his mandate successors, Manfred Nowak, considers the visits to be a means of providing assistance to the State – assistance must be based on ‘thorough and objective fact-finding and assessment of the respective needs for reform’.8 Other mandate holders have different views on what country visits can achieve, from understanding the causes and dynamics of a thematic mandate, to communicating about specific cases, and to proposing possible reforms.9 The visits are also important for the officials of a country visited. Particularly in the context of the hrc and its upr, country visits have become a marker of a country’s cooperation with the un human rights system and an indicator of accepting scrutiny of compliance with universal human rights standards. One of the documents that form the basis of the review, a compilation of each State’s interaction with un human rights mechanisms, contains a section that

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Special Procedures often receive communications from individuals and organisations and then consolidate and send their own communications to States. Some receive many detailed complaints, whereas others address broader policy and legal questions. According to the un, there have been a total of 2,621 complaints sent by the Special Representative on human rights defenders and 1,896 from the Special Rapporteur on torture. In contrast, there have only been 407 complaints from the Special Rapporteur on the right to health; 204 from the Special Rapporteur on the right to food and just 13 sent by the Independent Expert on the right to a clean environment: accessed 10 February 2016. See ‘Terms of Reference for Fact-finding Missions by Special Procedures’ setting forth guarantees sought for country visits accessed 10 February 2016. (n 4). N Rodley, ‘United Nations Human Rights Treaty Bodies and Special Procedures of the Commission on Human Rights: Complementarity or Competition?’ (2003) 25 Human Rights Quarterly 882. See e.g. unhrc ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak’ (9 February 2010) un Doc A/ HRC/13/39, para 31. unhrc ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston’ (20 May 2010) un Doc A/HRC/14/24, para 19.

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details cooperation with Special Procedures.10 During the oral review at upr, States often refer to the visits they have received. Other States often ask questions about such cooperation to which the State under review is expected to respond. Because States accept visits on a voluntary basis, mandate holders have experienced some challenges in getting to the countries they seek to visit and having the variety of experiences they seek. At an officially convened seminar on ‘rationalising’ Special Procedures in 2005, Vitit Muntarbhorn, Chair of the Coordination Committee of Special Procedures, identified such challenges as including non-cooperation of some countries along with the ‘paradoxical situation that those States that did cooperate were more closely scrutinized than those that refused to issue invitations for visits’.11 Additionally, the mandate holders have complained that those that do cooperate often make choices that deliberately prevent certain kinds of scrutiny. Philip Alston, also a former Chair of the Coordination Committee, complained that the States’ ability to refuse visits threatened to undermine the Special Procedures system.12 Later, he elaborated on this threat, remarking that ‘[t]he most pressing problem … is that states will often pick and choose which mandates they invite, as a result of which the most pertinent ones are often blocked while those that are considered relatively “harmless” are happily admitted’.13 Alston’s concern was not a complaint from just one mandate holder; at their annual meeting in 2014, all mandate holders formally stated that they ‘regretted the practice of some states that deny access to certain mandate holders while inviting others to visit’.14 10

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The Human Rights Council decided to include information on ‘cooperation with human rights mechanisms’ in all background documents prepared for upr. See unhrc ‘General Guidelines for the Preparation of Information under the Universal Periodic Review’ (27 September 2007) un Doc A/HRC/DEC/6/102. un Commission on Human Rights (unchr) ‘Rationalization of the Work of the Commission on Human Rights: Enhancing and Strengthening the Effectiveness of the Special Procedures of the Commission on Human Rights’ (12 December 2005) un Doc E/ CN.4/2006/116, para 6. Ibid para 27. P Alston, ‘Hobbling the Monitors’ (2011) 52 Harvard International Law Journal 563, 573. For more on this point, see Shaheed and Parris Richter’s contribution to this collection. For a discussion of the phenomenon of picking and choosing mandates in the context of engagement with both un and African Union Special Procedures, see Fisher and Beswick’s contribution to this collection. unhrc ‘Report on the 21st Annual Meeting of Special Rapporteurs/Representatives, Independent Experts and Working Groups of Special Procedures of the Human Rights

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Concern about States ‘picking and choosing’ focusses us on the question of whether the thematic mandates carry out universal coverage of the human rights issue they are mandated to examine or whether the experts are being manipulated by non-cooperating States in ways that conceal severe abuses, keeping them from being investigated by un mechanisms. This chapter explores these issues by reviewing aspects of country visits and responses to them. Section ii reviews the growth of country visits by thematic Special Procedures, some of the countries visited, and the issuance of standing invitations to mandate holders. Section iii looks at the distribution of visits and complaints about them made by States. Section iv examines how the work of the hrc has affected the cooperation of a sampling of States with the mandate holders. Specifically, it looks at how hrc elections and its upr process may have influenced decisions to cooperate with mandate holders, and follow-up to their visits. This section examines how five countries that joined a formal statement to the hrc complaining about mandate holders’ country visits have engaged with country visits. These profiles consider pledges made at elections, the timing of invitations and visits, the selection of mandates, the number of visits, and the responses to those visits by States in the contexts of the upr, hrc elections, and in the hrc’s public discussion about the visits. The chapter ends with a discussion of measures the hrc might take to avoid problematic ‘picking and choosing’. ii

Understanding Country Visits

A Growth of Country Visits hrc members have presided over a growth in the number of mandates and also the number of country visits by thematic mandate holders. The growth in mandates, from the first ones in 1967 (country-specific) and 1980 (thematic) to the 55 that exist at the time of writing has led to an increase in the number of country visits undertaken by mandate holders. But it is not just expansion of numbers that has impacted upon the increased numbers of visits. The early Special Procedures undertook very few visits compared to today, and they were brief. The Working Group on disappearances set the pattern for country visits by thematic procedures. Two of its members visited Mexico in ­January 1982,

Council, Including Updated Information on the Special Procedures’ (29 January 2015) un Doc A/HRC/28/41, para 37.

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and two members paid a three-day visit to Cyprus the same year.15 Significantly, in March 1984 in the annual resolution renewing the Working Group, the chr explicitly encouraged it to undertake country visits subject to invitation from the government concerned.16 The chr also tasked the un to provide assistance to the Working Group to enable it to carry out its functions in an ‘effective and expeditious manner’.17 In 1987 the chr cited the need for Secretariat assistance to the Working Group ‘in carrying out missions or holding sessions in countries that would be prepared to receive them’.18 By 1991 the chr was asking States to provide information as to how they had implemented the recommendations of the Working Group, and in the following year referred to Secretariat assistance for ‘following them up’.19 Probably because of this explicit authorisation, a five-day visit to Bolivia in 1984 is cited on the website of the Office of the un High Commissioner for Human Rights (ohchr) as the first country visit by the Working Group on disappearances;20 others followed to Peru (1985) and Guatemala (1987).21 15

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17 18 19 20

21

In its first report, the Working Group attached a copy of a letter sent to seven States and one other entity asking them to invite the Working Group to visit to establish ‘direct contacts’: see unchr ‘Question of Human Rights of all Persons Subjected to any Form of Detention or Imprisonment, in Particular: Question of Missing and Disappeared Persons’ (26 January 1981) un Doc E/CN.4/1435 Annex viii. In its second report it stated that Mexico had issued an invitation and that a visit would occur in January 1982: unchr ‘Question of Human Rights of all Persons Subjected to any Form of Detention or Imprisonment, in Particular: Question of Missing and Disappeared Persons’ (31 December 1981) un Doc E/ CN.4/1492, para 15. In its third report it stated that two members visited Mexico in January 1982 and two visited Cyprus in July 1982: unchr ‘Question of Human Rights of all Persons Subjected to any Form of Detention or Imprisonment, in Particular: Question of Missing and Disappeared Persons’ (21 January 1983) E.CN.4/1983/14, para 19. ‘Encourages the Governments concerned to consider with special attention the wish of the Working Group to visit their countries, when such wish is expressed, thus enabling the Group to fulfil its mandate more effectively’: unchr Res 1984/23 (6 March 1984) un Doc E/CN.4/RES/1984/23, para 7. Ibid para 8. unchr Res 1987/27 (10 March 1987) un Doc E/CN.4/RES/1987/27, para 10. unchr Res 1992/30 (28 February 1992) un Doc E.CN.4/1992/30, 81. See list of country visits on accessed 11 February 2016. See also unchr ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (23 January 1985) un Doc E/CN.4/1985/15, Visit by JKD Foli and LV Quirós to Bolivia, para 51. Ibid. See also unchr ‘Report on the Visit to Peru by Two Members of the Working Group on Enforced or Involuntary Disappearances (17–22 June 1985)’ (8 January 1986) un Doc E/CN.4/1986/18/Add.1; unchr ‘Report on a Visit to Guatemala by Two Members of the

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­ lthough the Working Group made no further visits until it travelled to the A Philippines in 1991,22 country visits have followed in almost every year since, totalling around 30 country visits to date. The Special Rapporteur on summary or arbitrary executions, established in 1982 as the second global thematic Special Procedure, undertook visits to Suriname (1984, 1986)23 and to Uganda (1986).24 The Special Rapporteur on torture, established in 1985, made his first country visits to Argentina, Colombia and Uruguay in late 1987.25 The Special Rapporteur on religious intolerance, established in 1986, went to Bulgaria for his first visit.26 The growth in mandates and expansion of activity has been aided by more financial support and creation of a separate branch of ohchr, which treats the Procedures as a system. In 2006 mandate holders undertook a total of 48 visits to 38 States. In 2013, this had grown substantially to 79 visits to 66 States or territories, and in 2014 there were 80 visits to 60 States and territories.27 Recent visits normally last for 10 days to two weeks, not a few days as in the early country visits.

22

23

24

25

26

27

Working Group on Enforced or Involuntary Disappearances (5–9 October 1987)’ (21 December 1987) un Doc E/CN.4/1988/19/Add.1. Ibid. See also unchr ‘Report on the Visit to the Philippines by Two Members of the Working Group on Enforced or Involuntary Disappearances (27 August–7 September 1990)’ (10 January 1991) un Doc E/CN.4/1991/20/Add.1. unchr ‘Report by the Special Rapporteur, Mr S Amos Wako, Appointed Pursuant to Resolution 1984/35 of 24 May 1984 of the Economic and Social Council’ (12 February 1985) un Doc E/CN.4/1985/17; unchr ‘Visit by the Special Rapporteur to Suriname (16–28 August 1986)’ (19 January 1988) un Doc E/CN.4/1988/22 Annex, cited on the Country Visits page accessed 11 February 2016. unchr ‘Visit to Uganda (17–20 August 1986)’ (22 January 1987) un Doc E/CN.4/1987/20 Annex ii, cited on the Country Visits page accessed 11 February 2016. unchr ‘Report by the Special Rapporteur, Mr P Kooijmans, pursuant to Commission on Human Rights Resolution 1987/29 – Addendum: Visit by the Special Rapporteur to Argentina, Colombia and Uruguay’ (23 February 1988) un Doc E/CN.4/1988/17/Add.1. unchr ‘Report Submitted by Mr Angelo Vidal d’Almeida Ribeiro, Special Rapporteur Appointed in Accordance with Resolution 1986/20 of the Commission on Human Rights’ (6 January 1988) un Doc E/CN.4/1988/45, paras 25–36. unhrc ‘Report on the Twenty-first Annual Meeting of Special Rapporteurs/Representatives, Independent Experts and Working Groups of the Special Procedures of the Human Rights Council, Including Updated Information on the Special Procedures’ (29 January 2015) un Doc A/HRC/28/41, para 5.

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Such visits have brought a very substantial increase in country coverage. Cumulatively, from the years 1998 to 2015, ohchr reported that 167 States had received visits.28 26 States worldwide had never received a visit. Luxembourg, Andorra, Monaco and a number of small-island States were on this list, and apparently had never been asked for invitations. However, 11 of those never visited are States that have simply refused the requests – seven African, three Asian, and one Caribbean State. They include Djibouti, Democratic People’s Republic of Korea (dprk), Eritrea, Gambia, Guinea, Libya and Zimbabwe, all States with serious human rights problems and many unanswered requests for visits.29 François Crépeau, Chair of the Coordination Committee from 2014 to 2015, complained to the hrc about country visits. On behalf of the mandate holders, he lamented that despite 167 countries having been visited, ‘26 States have not yet accepted any visit by a mandate holder. Some do not react to repeated written requests for visits. Others have given access to only a select few. It is also unfortunately a reality that a standing invitation does not necessarily guarantee that a visit will actually take place’.30 ohchr has published lists of the outstanding requests for visits, and in recent years, has provided updated information on the responses and non-responses of States in reports and on the ohchr website.31 Each year there has been progress, as mandate holders appear to be looking at the matter of visits seriously, apparently striving for the universality that hrc founders had sought. B Countries Visited by Mandate Holders Despite early hopes for universality of scrutiny through Special Procedure visits, as of December 2013 thematic mandate holders have visited some countries quite often and others comparatively little. The highest number visited since 1998 (when ohchr’s records begin) were States in the Americas: Brazil and Guatemala led with 21 visits, the us and Mexico had 20 visits, Ecuador 19, and then the figures drop to 15 for the uk and Turkey. In the rest of the world, countries have been visited far less, with 11 being the largest number of thematic 28

ohchr ‘Table of States not yet visited by any mandate-holder’ accessed 11 February 2016. 29 Ibid. dprk and Eritrea have country mandates. Libya was the focus of a Commission of Inquiry. Since its 2011 change of government, Libya has responded positively to requests to visit, but security issues have prevented any visits from being conducted. 30 ohchr ‘François Crépeau, the Chairperson of the Coordination Committee, Presents the Annual Report of Special Procedures to the Council’ (ohchr, 18 March 2015) acces­ sed 11 February 2016. 31 unchr (n 20).

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visits for any country in the other three regions. In Asia, Indonesia leads with 11 visits, and Sri Lanka, India, and Kazakhstan are next, at nine each. Similarly, in Africa, 11 thematic visits is the largest, for South Africa, with Democratic Republic of Congo and Morocco having had nine. The countries with the largest number of visits for Eastern Europe are Armenia 11, Azerbaijan 10, Georgia 9, and Russia 8.32 This numerical account does not make clear whether key countries are being visited by pertinent Special Procedures. As chr and hrc members have demanded reform of Special Procedures and introduced a Code of Conduct,33 there have been requests for more transparency and information about visits. ohchr has responded with statistics, and other information in reports and online. These data suggest there may be a more coordinated effort, supported by the Secretariat, to ensure that mandate holders visit a ‘balanced’ array of States. ohchr’s charts also demonstrate the large number (and large proportion) of outstanding requests for visits to Asian and African countries. On close inspection, many of these requests are concentrated on only a few countries. Among those often asked for new invitations, Uzbekistan and Turkmenistan have each been visited only once and Thailand twice. The decision to seek and conduct country visits is reached strictly by the individual serving as mandate holder. Yet mandate holders have said very little about the reasons behind their choice of countries visited. Key motivations appear to include the urgency of a situation, the potential impact of the visit, and a desire for geographical balance.34 Often, mandate holders request an invitation from a State, which the State may issue or reject by its silence, or otherwise respond. In some cases, States are the first to ask. Sometimes a State that is visited has sponsored a mandate’s creation, or has made a financial contribution in support of the mandate. For example, Russia was said to have provided extra-budgetary support for the mandate on cultural rights. When that mandate holder was invited to visit Russia in 2012, some observers thought this funding may have been a factor.35 32

33 34

35

These figures are derived from the chart on the ohchr website (n 20). An additional source covering some of the early visits can be found in M Lepinen, The United Nations Commission on Human Rights and the Different Treatment of Governments (Åbo Akademi University Press 2005) 456. unhrc ‘Code of Conduct for Special Procedures mandate-holders of the Human Rights Council’ (18 June 2007) un Doc A/HRC/Res/5/2. J Naples-Mitchell, ‘Perspective of un Special Rapporteurs on their Role: Inherent Tensions and Unique Contributions to Human Rights’ (2011) 15 International Journal of Human Rights 232. Interviews with ohchr officials, Geneva, 2013.

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A State’s relationship to the un or ohchr, the presence of a un human rights adviser, or pursuit of a country office, can also lead a State to issue invitations to mandate holders. For example, ohchr sent a Senior Adviser in Human Rights to Honduras in 2010. Not long after, in October 2011, Honduras invited 14 mandate holders all at once, an action which appears to have been linked to the Government’s effort to obtain a larger human rights presence in the country. According to the 2015 un Human Rights Appeal,36 which sets out ohchr’s priorities and needs, there were plans to open a country office in Honduras this year. Similarly, the very large number of thematic Special Procedures visits to Guatemala (21) may also be linked to the presence of a un country office in that State. upr has also had an impact on issuing invitations for visits and their timing. For example, on 9 March 2009, just two months before its upr was to take place, Vietnam invited three mandate holders to visit (right to education, health, and extreme poverty). At the upr session, the State’s representative announced that Vietnam had ‘recently’ invited five mandate holders.37 Concerned that more than mere numbers were at stake, France asked Vietnam to invite all the mandate holders who actually requested visits to Vietnam, and not to limit the country to invitations dealing only with economic, social and cultural rights.38 The United Kingdom, New Zealand, Germany and Italy specifically urged Vietnam to renew engagement with the Special Rapporteur on Freedom of Religion.39 Algeria also invited a group of seven mandate holders at once, but few were able to visit in the short time period it had identified. Its Minister explained that it would not allow others to visit until all seven had conducted missions.40 Some observers speculate that, in view of Algeria’s primary role in sponsoring the Code of Conduct, its motives were to look good at upr and to make the 36 37 38 39 40

ohchr ‘un Human Rights Appeal’ (2015) 8 accessed 11 February 2016. unhrc ‘Report of the Working Group on the Universal Periodic Review’ (5 October 2009) un Doc A/HRC/12/11, para 21. Ibid para 85. Ibid paras 51, 59, 63, 64, 83 and 87. unga ‘Note Verbale Dated 2 July 2013 from the Permanent Mission of Algeria to the United Nations Addressed to the Secretariat’ (17 July 2013) un Doc A/68/153, para 11; unhrc ‘Panel Discussion on the Negative Impact of Corruption on the Enjoyment of Human Rights’ (27 September 2012) un Doc A/HRC/21/13, para 50. For an example of Algeria’s public comments to mandate holders, see video of unhrc ‘Algeria, Clustered id on Expression and Executions, 4th Meeting’ (19 June 2012) accessed 11 February 2016.

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mandate holders who did not find the time to visit appear biased against the State.41 Sometimes a mixture of internal and external political pressures can influence invitations. For example, in July 2006, one month after the Minister of Justice spoke at the hrc opening session, Zimbabwe made an unsolicited invitation to three mandate holders (freedom of religion, right to education, and violence against women).42 The invitation ignored five other requests received between 2000 and 2006 (independence of judges and lawyers, human rights defenders, freedom of expression, torture, and right to food). Later, in 2009, the Special Rapporteur on torture Manfred Nowak was invited to visit, but his invitation was withdrawn while he was en route to the country. Nowak stated that he was invited by the Prime Minister, but when he arrived he was denied entry and had to spend the night in the Harare airport. According to the press, he blamed the country’s President – that is, internal political rivalries between the Prime Minister and President – for his ouster.43 To date, no mandate holder has visited Zimbabwe.44 Political pressure from external sources could also lead to a decision to receive visits from certain Special Procedures. For example, the visit of the Special Rapporteur on torture to Uzbekistan in 2003 reportedly came about after pressure from the us and European Union. The Special Rapporteur found ‘systematic torture’.45 Despite 13 outstanding requests since then, Uzbekistan has not permitted another visit from a mandate holder.46 41 42

Interviews with mandate holders and ohchr officials, Geneva, 2014. ohchr ‘Country and Other Visits by Special Procedures Mandate Holders since 1998 – N–Z’ accessed 11 February 2016. Footnote 2 states that ‘[o]n 27 July 2006, the Government of Zimbabwe sent an unsolicited invitation to the three mandates (Freedom of religion, Right to education and Violence against women)’. 43 See un Doc A/HRC/13/39 (n 8); D Smith, ‘un Torture Investigator Refused Entry to Zimbabwe’ The Guardian (Johannesburg, 29 October 2009) accessed 11 February 2016. 44 However, un High Commissioner Navi Pillay did visit Zimbabwe in May 2012: ohchr ‘un Human Rights Chief Ends First Ever Mission to Zimbabwe’ (ohchr, 29 May 2012) accessed 11 February 2016. 45 unchr ‘Civil and Political Rights, Including the Question of Torture and Detention’ (3 February 2003) un Doc E/CN.4/2003/68/Add.2. See also Z Eshanova, ‘Uzbekistan: un Rapporteur Says Use of Torture “Systematic”’ (Radio Free Europe Radio Liberty, 9 December 2002) accessed 11 March 2016. 46 See Uzbekistan on ohchr ‘Country and Other Visits by Special Procedures Mandate Holders since 1998 – N–Z’ (n 42).

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ohchr officials surmise that some States’ approach to receiving visits changed positively for other reasons, such as when that country is running for election to the hrc, is a candidate for Council Presidency, or about to be reviewed by upr.47 One mandate holder claims that when the Philippines ran for election to the hrc, it opened conversations with him to present a positive image to other States.48 In their voluntary pledges and commitments for hrc election, some States cite visits they have already hosted,49 visits they will agree to in the future,50 or talk generically about cooperation with Special Procedures51 and their responses to requests for information on communications. Yet some countries that have had few visits, or refuse to accept visit requests, have said nothing about Special Procedures in their initial pledges for election. 47 48 49

50

51

Interviews with ohchr officials, Geneva, 2013. Interview with former mandate holder, Geneva, July 2014. For example, in 2014 Costa Rica prominently referenced that it received visits from mandate holders on indigenous rights, safe drinking water and clean environment, as well as its standing invitation, in unga ‘Letter dated 6 March 2014 from the Permanent Representative of Costa Rica to the United Nations addressed to the President of the General Assembly’ (7 March 2014) un Doc A/69/68. Latvia, also citing the standing invitation, referenced five visits it had received, in its voluntary pledges for 2014, in unga ‘Letter dated 25 July 2014 from the Chargé d’affaires a.i. of the Permanent Mission of Latvia to the United Nations addressed to the Secretary-General’ (25 August 2014) un Doc A/69/352. Indonesia referenced its visit from the mandate holder on adequate housing, in unga ‘Note Verbale dated 2 July 2014 from the Permanent Mission of Indonesia to the United Nations addressed to the President of the General Assembly’ (10 September 2014) un Doc A/69/375. After detailing visits already received (torture, slavery, health), 2014 hrc candidate Ghana stated it was considering a visit from the Working Group on mercenaries. See unga ‘Note Verbale dated 8 August 2014 from the Permanent Mission of Ghana to the United Nations addressed to the President of the General Assembly’ (11 September 2014) un Doc A/69/221. Similarly, election candidate Thailand stated that it seeks to promote ‘­constructive cooperation between States and Special Procedures mandate holders’ in unga ‘Letter dated 22 July 2014 from the Permanent Representative of Thailand to the United Nations addressed to the President of the General Assembly’ (22 July 2014) un Doc A/69/175. For 2014, see Qatar, unga ‘Letter dated 16 September 2014 from the Permanent Representative of Qatar to the United Nations addressed to the President of the General Assembly’ (24 September 2014) un Doc A/69/403; India, unga ‘Letter dated 16 October 2014 from the Permanent Representative of India to the United Nations addressed to the President of the General Assembly’ (20 October 2014) un Doc A/69/538, para 10j; Indonesia, unga ‘Letter dated 2 July 2014 from the Permanent Representative of Indonesia to the United Nations addressed to the President of the General Assembly’ (10 September 2014) un Doc A/69/375, all of whom promise generically to cooperate with un human rights Special Procedures.

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When there is a standing invitation it is commonly mentioned in the pledges made by candidate countries.52 C The Standing Invitation Beginning in 1999, some countries attempted to address the problem of noncooperation with Special Procedures and simultaneously to establish universality of coverage by issuing a so-called ‘standing invitation’ to all mandate holders. In 2004, the chr encouraged all States to consider extending such invitations.53 According to ohchr’s website, 34 States had done so by 2001; the number had grown to 89 States in 2011, and there were 114 in 2015.54 Standing invitations have been issued by members of all un regional groups, with West European and Others Group (weog) and East European Group members having done so in the largest proportion: 27 of 29 weog members have extended standing invitations, as have 21 of 24 East European Group members. In contrast, only 18 of the 33 Latin American and Caribbean States have issued standing invitations. In Africa and Asia less than half of all States have done so: 24 of 54 African States, and 24 of 53 Asian States.55 In practice, each visit has to be planned and agreed to by the State irrespective of whether a standing invitation exists. One might ask whether a standing invitation has any meaning, since each visit is negotiated in just as much detail whether it does or does not exist. Iran, for example, extended a standing invitation in 2002, but after receiving five mandate holders between 2003 and 2005 (freedom of expression, Working Group on Arbitrary Detention, migrants, violence against women, and housing), its officials have not accepted any visit from any thematic or country-specific mandate holder. In addition to requests from the Special Rapporteur on human rights in Iran, established in 2011, who has never been permitted to visit, seven thematic mandate holders have outstanding requests for visits that have neither been accepted nor taken place.56

52

53 54 55 56

See n 499. Paraguay also references its ‘open invitation’ in unga ‘Letter dated 27 December 2013 from the Chargé d’affaires a.i. of the Permanent Mission of Paraguay to the United Nations addressed to the President of the General Assembly’ (25 April 2014) un Doc A/69/78. unchr Res 2004/76 (21 April 2004) un Doc E/CN.4/RES/2004/76. ohchr ‘Standing Invitations’ accessed 11 March 2016. Ibid. As of 7 December 2015, there were 114 standing invitations. For Iran’s country visits, see ohchr ‘Country and Other Visits by Special Procedures Mandate Holders since 1998 – F–M’ accessed 11 March 2016. Reportedly, Iran has also invited the High Commissioner

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States’ Approaches and Responses to Visit Requests

A Do States Block Key Mandates Deliberately? In response to questions and criticism about which States mandate holders visit, ohchr has published a detailed list concerning country visits since 1998.57 The list suggests that many States accepted visits from mandate holders focussed on specific social groups or on economic and social rights, while, with exceptions, refusing to receive certain civil or political rights mandate holders. Sometimes the State has accepted one visit from a case-oriented Special Procedure, but not from the many others that have asked for invitations – ­suggesting that there may have been political pressure to permit one otherwise unwelcome visit but not more. The reader can see this throughout the dozens of pages of the list, arranged alphabetically for some 165 countries.58 Below are three examples that appear at the beginning of the list. Each reveals that the countries concerned ‘pick and choose’ whether or not to receive visits from mandate holders on civil and political rights. • Angola had received visits from mandate holders on internally displaced persons, human rights defenders, and, most recently in 2007, from the Working Group on Arbitrary Detention and the Special Rapporteur on freedom of religion. Since then, no mandate holder has visited the country. Six have requested invitations, and Angola has formally accepted, in principle, visits from mandate holders on housing, education, and migrants, but not from those on freedom of association or independence of judges and lawyers. • Azerbaijan was visited by mandate holders on internally displaced persons, freedom of expression, health, violence against women, and the Working Group on business and human rights, all since the hrc was established in 2006. But Azerbaijan, which has been engaged in a reported crackdown on human rights defenders, lawyers, and others, has not yet permitted visits from Special Procedures on arbitrary detention, freedom of association, independence of lawyers and judges, or human rights defenders. It has not permitted any visit from the Working Group on mercenaries which asked to visit in 2008 and 2011 in response to claims that Chechen and Afghan mercenaries were fighting in Nagorno-Karabakh.

for Human Rights; the last two office holders have not agreed to visit. For more on Iran and country visits, see Shaheed and Parris Richter’s contribution to this collection. 57 See n 20. 58 Ibid.

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• Bahrain, which has long had a troubled relationship with its majority Shi’a population, received visits in 2001 and 2006 from the Working Group on Arbitrary Detention and the Special Rapporteur on trafficking. But since then, and particularly since demonstrations grew during the ‘Arab spring’, Bahrain has not accepted the requests for invitations nor any visits from the Special Rapporteur on torture,59 migrants, freedom of association, human rights defenders, and freedom of expression, all problematic subjects in the small Gulf state. B Distribution of Country Visits One ongoing criticism of Special Procedures is that selection of countries to visit is unfair and unbalanced between the Global ‘North’ and Global ‘South’. While initially Special Procedures visited a large number of States in the Global South, this has not been the case more recently.60 Lists provided by the Secretariat offer useful information on this matter. Piccone and Limon report that, as of December 2013, there had been a total of 962 visits by mandate holders divided, as follows, according to the un regional groupings:61 Table 3.1

Visits and requests according to regional groups

Regional Group (# States in group)

Visits

Requests outstanding

Asia + Pacific (53) Africa (54) Latin Amer. + Caribbean (33) West European + Others (29) East European (23)

248 235 202 140 119

276 209 88 51 49

59

60 61

In the case of the torture mandate, Bahrain accepted and then postponed the visit – the Special Rapporteur on torture issued a press release indicating that Bahrain refused the visit. See ohchr ‘Bahrain/Human Rights: Government Effectively Cancels un Special Rapporteur on Torture’s Visit’ (ohchr, 24 April 2013) accessed 11 February 2016. See n 20. M Limon and T Piccone, ‘Human Rights Special Procedures: Determinants of Influence. Understanding and Strengthening the Effectiveness of the un’s Independent Human Rights Experts’ (Universal Rights Group, March 2014) 24 accessed 9 February 2016.

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It appears that Asia and Africa are being visited more often than other regions of the world, but if one considers the number of countries in each regional group, the picture seems quite different. If one divides the number of visits to countries in a regional group by the number of States in each regional group, it turns out that, proportionately, there have been more visits to Latin ­American62 countries than to other regional groups. East Europe,63 and then West Europe and Others64 have the next highest proportion of visits, given the number of countries in the region. Asian and African countries have had fewer visits, proportionately.65 C Complaints about the Special Procedures Sometimes States have complained about actions by mandate holders during their visits – who and where they visit, statements made to the media during the visit and other actions outside the control of the state authorities.66 Some charge that the mandate holders demonstrate bias in their work. To address such concerns, States adopted a ‘Code of Conduct’ to govern the professional behaviour of mandate holders even as they called upon States to cooperate with mandate holders.67 While affirming mandate holders’ independence and their need for confidentiality, the Code also requires ‘even-handedness’ and giving States the first opportunity to comment on the mandate holder’s conclusions, thus attempting to limit public statements in-country. At the hrc session in June 2013, 11 States made a comprehensive joint statement complaining about mandate holders’ country visits, pointing to items

62 63 64 65 66

67

Latin America’s 33 countries have received 202 visits, with an average of 6.12 visits per country in the group. Eastern European Group’s 23 countries have received 119 visits, with an average of 5.17 visits per country. weog’s 29 countries received 140 visits, with an average of 4.83 per country. The Asian Group’s 55 members, with 248 visits, average 4.51 visits per country; Africa’s 54 members, receiving 235 visits, average 4.35 visits each. See Alston (n 133). See also statement by Kenya, 3 June 2009, on the unhrc Extranet accessed 29 June 2016. See also China’s statement at unhrc 19th Session (6 March 2012), criticising the mandate holder on the right to food, accessed 29 June 2016. un Doc A/HRC/RES/5/2 (n 33).

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­included in the Code of Conduct.68 Together, Algeria, Belarus, China, Cuba, Ecuador, India, Iran, Pakistan, Russia, Sri Lanka and Thailand criticised ohchr staff (for example, claiming that ohchr staff, rather than the mandate holder, negotiated the visit plan; made ‘unilateral changes’ to the programme when a mandate holder actually visited) and raised concerns about extra-budgetary funding of mandate holders. They complained that public statements by mandate holders at the end of their visits are made without consultation with the State concerned and that some mandate holders reject the ‘security’ provided by States during their visits. The 11 States that made these complaints challenged such underlying principles as the independence of and methodology used by mandate holders – s­ tating that their States would like to see ‘terms of reference’ for a country visit approved by the Council as a whole, not proclaimed independently by the mandate holders. Such charges raise questions about what happened during visits to each of the countries joining the statement, or whether these public complaints are simply a new variation of old opposition to the Special Procedures and country-specific scrutiny on core human rights issues. D Relevance of the Universal Periodic Review The upr has encouraged countries to cooperate with Special Procedures and accept country visits. Each State’s record of cooperation – and non-­cooperation – is detailed in the compilation of information prepared by the Secretariat.69 Many States ask questions about such cooperation – particularly whether the State will issue a standing invitation, whether it will ‘cooperate’ with one or more Special Procedures, and whether it will accept a visit from a specific mandate holder. Less often, States ask whether the country under review will in fact implement the recommendation(s) of mandate holders.70 68

69

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‘Joint Statement on Special Rapporteurs and their country visits. General Debate: Item 5’ (7 June 2013) delivered by India. See unhrc Extranet accessed 29 June 2016. See ‘Compilation Prepared by the Office of the High Commissioner for Human Rights in accordance with paragraph 5 of the annex to Human Rights Council Resolution 16/21’ for each un Member State, accessible on the ohchr website accessed 16 February 2016. Documentation can be found by examining each ‘Report of the Working Group’ document in the collection of upr background information on the ohchr website as cited in the previous footnote. An additional and user-friendly source is the website of the nongovernmental organisation, upr-Info: accessed 16 February 2016. Information on recommendations made by States during the Working Group’s review of each State under review, and whether that State has accepted them, can be

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With the advent of the upr mechanism, many rights-respecting States argued that it would be possible to achieve universal scrutiny of practices in States.71 As the upr second cycle nears completion, the strengths and ­weaknesses of the process are evident: upr has brought uneven scrutiny and cursory examination of issues, but it has focussed attention on how each State cooperates with the international human rights system. Treaties ratified and reports submitted are staples of the review process. So, too, is the relationship with Special Procedures. The un’s compilation addresses each State’s cooperation with Special Procedures and whether it has extended a standing invitation. The sections below examine how several of the States that were part of the joint statement in 2013 have responded to visits by Special Procedures and to questions about them raised in the context of the upr. This includes examining the questions asked by ‘peers’ (that is, other States) about those States’ ­interaction with Special Procedures, their responses, and their reactions to mandate holders’ visits. This may provide some insight into whether States have in fact been picking and choosing visits to allow in ways that have blocked certain mandate holders in favour of others. An overview of the States joining the statement is followed by profiles of five of those countries: China, Russia, Algeria, Iran and Cuba. iv

Case Studies

A upr Recommendations on Special Procedures During the two upr cycles, States that made the joint statement on country visits were often asked about their cooperation with Special Procedures. The table below72 indicates the total number of recommendations on Special Procedures made during upr to each of the 11 States that criticised country visits. It then shows that these recommendations fell into four general categories: recommending that the State issue a standing invitation, recommending that the State actually implement mandate holders’ recommendations (that is, any

71 72

searched there. This chapter has utilised this resource and categorised replies into the four categories employed in it: cooperation, standing invitations, cooperation with specific rapporteurs, and accepting visits from specific rapporteurs. F Gaer, ‘A Voice not an Echo: Universal Periodic Review and the un Treaty Body System’ (2007) 7 Human Rights Law Review 126. The table is based on an analysis of the recommendations made in upr for each of these countries, as searched on the database at upr-Info at accessed 16 February 2016.

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who visited), calling for cooperation with Special Procedures (sometimes calling for ‘continued cooperation’ which is at odds with the usual request when there is non-cooperation), and specific recommendations to invite mandate holders for a visit. The latter category, about invitations to mandate holders, has often included references to specific mandate holders whose requests for invitations have not been accepted and/or realised. The table reveals that, of the 11 countries criticising country visits in 2013, Iran, Cuba, China, Sri Lanka and Russia received the most recommendations concerning their interaction with the Special Procedures system during their upr sessions. Iran was asked again and again to invite rapporteurs; Cuba, Sri Lanka and China were repeatedly urged to cooperate with them. The most common recommendation was a request to the State under review to issue a standing invitation. Surprisingly few States said anything about implementing the recommendations of mandate holders who had visited. Sadly, this ­demonstrates that ‘cooperation’ has become the standard being evaluated in upr, rather than implementation (or compliance with the standards, as requested). The chart confirms that while each of these countries is put on the spot during the upr about their interaction with Special Procedures, it has Table 3.2 Recommendations about Special Procedures made at upr sessions

Category of recommendations Country

No of sp Reccs

Standing invite

Algeria Belarus China Cuba India Iran Pakistan Russia Sri Lanka Thailand* Ecuador*

17 10 22 29 11 34 18 21 27 8 5

4 8 9 10 2 6 9 11 5 4 0

* Only one upr round counted

Implement 2 2 0 1 4 3 1 1 6 0 1

Co-op with sp

Invite sp

4 6 8 11 1 7 2 2 9 0 0

7 1 7 9 5 15 8 8 8 4 3

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been possible to manipulate this issue to focus on ‘cooperation’. In this way, the number of mandate holders that visit becomes more important than the subject matter under scrutiny. If each mandate is as good as any other, then it becomes possible for States to manipulate the issue of cooperation – inviting mandates unlikely to criticise the most egregious violations within their territories rather than those that might address particularly pertinent topics. B China Since quelling the demonstrations at Tiananmen Square, China has tried to change the conversation about human rights by prioritising ‘cooperation’ in human rights over ‘compliance’ with the human rights standards it has accepted in treaties.73 This was a particularly important component of China’s approach throughout much of the 1990s (and thereafter) when it was trying to defeat China-specific resolutions introduced in the chr. By inviting mandate holders to China, the State could claim to be ‘cooperative’ with un human rights mechanisms. At the same time, China could exercise its sovereign authority in deciding whether or not to receive any mandate holder – blocking any scrutiny it did not agree to – and demonstrating that it was only through ‘cooperation’ that a un human rights investigator could gain access to the country. China’s invitation to the Special Rapporteur on freedom of religion in 1994 was understood to be aimed at pre-empting criticism of China’s treatment of its ethnic minorities, especially Tibetans, which seemed likely to be a key element in a country-specific resolution expected at the 1995 chr.74 In the 1990s, Special Rapporteur on torture Nigel Rodley sent hundreds of individual communications to China. In 1995 he asked for an invitation to visit but did not receive a positive response.75 By 2000, when China still had not issued an invitation to visit, Rodley reported that he met with China’s Political Counsellor in New York, seeking to ‘clarify the nature of the difficulties posed for the Government by his request … for a fact-finding visit’. Rodley recounted that his 73

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See F Gaer, ‘Engaging China on Human Rights: The un Labyrinth – hric Interview with Felice Gaer’ (Human Rights in China, 29 October 2010) accessed 11 February 2016. A Kent, China, the United Nations, and Human Rights: The Limits of Compliance (University of Pennsylvania Press 1999) 112. At the chr, China’s Ambassador stated, ‘In inviting the Special Rapporteur on the Question of Religious Intolerance to China, the Chinese government has demonstrated fully its sincerity in developing international cooperation in the field of human rights’: Statement at 51st Session of the un Commission on Human Rights (Geneva, 10 February 1995), cited in Kent, 281. N Rodley ‘On the responsibility of Special Rapporteurs’ (2011) 15 International Journal of Human Rights 328.

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diplomatic interlocutor ‘confirmed the continuing applicability of his Government’s February 1999 invitation for a friendly visit’ (emphasis added). Rodley then ‘indicated his desire to find a solution that would be consistent with his commitment to undertaking a standard visit, with the usual methodology’.76 The ‘usual methodology’ meant agreeing to terms of reference77 that would allow him to visit places of detention unannounced, meet privately with complainants, and more. To this, China would not agree and Rodley never visited China. In 2005, however, Manfred Nowak, another Special Rapporteur on torture, was finally permitted to visit.78 Nowak’s report on his visit to China presents a detailed account of the law, his meetings, and what needs to be corrected. It also describes the obstacles that Chinese authorities placed in his path – attempting to prevent him from private visits to detention facilities and from speaking to key persons.79 The un compilation prepared for China’s upr uncharacteristically reminded States that during Nowak’s visit ‘security and intelligence officials attempted to obstruct or restrict his attempts at fact-finding’.80 Nowak’s report presents some of the details on intimidation that the upr summary merely references.81

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unchr ‘Report of the Special Rapporteur, Sir Nigel Rodley, Submitted Pursuant to Commission on Human Rights Resolution 2000/43’ (25 January 2001) un Doc E/CN.4/2001/66, para 14. Terms of reference include: freedom of movement throughout the country; freedom of inquiry, especially in terms of access to all detention centres and places of interrogation; free contact with central and local authorities of all branches of government; free contact with representatives of nongovernmental organisations, other private institutions and the media; confidential and unsupervised contacts with witnesses and other private individuals, including persons deprived of their liberty; and full access to all documentary material relevant to the mandate. See unchr ‘Report of the Special Rapporteur on the Question of Torture Submitted in Accordance with Commission Resolution 2002/38’ (17 December 2002) un Doc. E/CN.4/2003/68, para 16. unchr ‘Civil and Political Rights, Including the Question of Torture and Detention: Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak’ (10 March 2006) un Doc E/CN.4/2006/6/Add.6. Ibid paras 9–10. unhrc ‘Compilation Prepared by the Office of the High Commissioner for Human Rights, in Accordance with Paragraph 15(B) of the Annex to Human Rights Council Resolution 5/1: People’s Republic of China (including Hong Kong and Macao Special Administrative Regions (hksar) and (msar))’ (16 December 2008) un Doc A/HRC/WG.6/4/CHN/2, para 8. unchr (n 78) para 10 and fn 2.

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In all, China has accepted rather few visits from Special Procedures – it cited only four (since 1997) in its voluntary pledges for election82 at the time the hrc was established, although it had already been visited by five thematic procedures dating back to 1994. Nine years later, it has received only two others – on the right to food and on discrimination against women. The visits are carefully timed and China’s willingness to consider a new visit has been announced on a few occasions as a tantalising possible breakthrough. Still, at the time of writing, there are 14 outstanding requests for visits to China, including on extrajudicial executions, human rights defenders, free assembly, toxic waste, health, housing, and disappearances. China’s interaction with Special Procedures became an issue raised both in connection with commitments made before elections to the hrc as well as queries connected to the upr. As a candidate for the first hrc election in 2006, China explained that it had previously invited and received visits from four mandate holders on freedom of religion, and the right to education as well as arbitrary detention and torture.83 Yet many other countries had received far more visits by that time; for example, Brazil and Colombia had already received 14 country visits, Sudan 12, Turkey 11, and the United Kingdom, the United States and Guatemala 10 each.84 When China presented itself for the upr in February 2009, its national report cited those same four visits.85 Denmark presented a written question asking how China was implementing the Special Rapporteur on torture’s recommendations.86 Norway asked whether China was responding to requests for visits, including to Tibet.87 In the oral upr session China began its remarks pointing out it ‘maintained good relations of cooperation’ with Special ­Procedures and was ‘considering inviting another Special Procedure to visit China in 2009’.88 The Netherlands, uk and Latvia recommended that

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‘Aide Memoire’ (4 April 2006) accessed 11 March 2016. 83 Ibid. 84 See n 20. 85 See unhrc ‘National Report Submitted in Accordance with Paragraph 15 (A) of the Annex to Human Rights Council Resolution 5/1’ (10 November 2008) un Doc A/HRC/ WG.6/4/CHN/1, para 78. 86 Advance Questions submitted to China – Addendum, available at accessed 11 March 2016. 87 Ibid. 88 unhrc ‘Universal Periodic Review: Report of the Working Group on the Universal Periodic Review – China’ (29 May 2009) un Doc A/HRC/11/25, para 14.

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China issue a standing invitation,89 Canada recommended an invitation to the Rapporteur on freedom of religion,90 and Mexico recommended inviting six mandate holders who were waiting for invitations.91 Saudi Arabia, which has received visits from only two mandate holders to date, urged China to invite some mandate holders, but suggested that China should now invite experts on economic, social and cultural rights.92 China outlined its record and its intention to ‘continue’ to extend invitations to Special Procedures and again stated it would ‘consider inviting one in 2009’.93 (According to one observer, China’s declaration was considered to constitute progress.94) In November 2012, the High Commissioner for Human Rights, Navi Pillay, called upon China to facilitate the country visits, noting that there were 12 outstanding requests for invitations and that during the upr session China had agreed to ‘step up’ such visits.95 In 2013, China was re-elected to the Council. Its pledge at that time again referenced its ‘good cooperation’ and cited a 2010 visit on the right to food.96 Indeed, that was the only such visit it had facilitated since Manfred Nowak’s visit in 2005. Using essentially the same language as in its first election, China declared that it would ‘continue to cooperate with the human rights Special Procedures’ and offered the same small promise that it would ‘consider inviting one special rapporteur to visit China this year’.97 Notably, China did not promise to invite a mandate holder, only to ‘consider’ inviting one, nor did it specify which one, nor why it would only permit one mandate holder to visit after five years without a visit particularly when so many mandate holders were asking for invitations. At its 2013 upr session China added some new conditions to its discussion of future country visits, citing limits based on its capacity to receive a visit and the balancing of 89 90 91 92 93 94 95

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Ibid paras 30 (Netherlands), 42 (United Kingdom), and 81 (Latvia). Ibid para 28. Ibid para 38. Ibid para 41. Ibid para 65. Interview with former mandate holder, Geneva, March 2013. ohchr ‘Pillay: China must urgently address deep-rooted frustrations with human rights in Tibetan areas’ (ohchr, 2 November 2012) accessed 11 March 2016. unga ‘Note Verbale dated 5 June 2013 from the Permanent Mission of China to the United Nations Addressed to the President of the General Assembly’ (6 June 2013) un Doc A/68/90, 3. ‘Aide Memoire’ (30 April 2009) un Doc A/63/840 accessed 11 March 2016.

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rights mandates.98 China’s three invitations for country visits since 2005 have focussed on economic and social rights and discrimination against women.99 During its two upr reviews, China received a total of 22 recommendations from States asking about Special Procedures. Seven of these urged China to accept specific visits requests. Another eight recommendations simply called for cooperation with Special Procedures (some, like Ghana, urging it to ‘continue’ its cooperation), and nine requested that China offer a standing invitation.100 In 2013 China announced that it would receive the Working Group on discrimination against women shortly, and three other mandate holders.101 The Working Group visited in December 2013.102 Both the Special Rapporteur on the right to food and the Chair of the Working Group on discrimination against women in law and practice presented oral and written reports to the hrc about their visits.103 China’s representative was positive about the visits but critical of the mandate holders’ findings. ­Olivier De Schutter’s report on right to food was considered ‘generally balanced’ particularly when it complimented China’s achievements in feeding its people, 98

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‘China will continue to cooperate with Special Procedures … and carefully consider the requests to visit of Special Procedures, bearing in mind its receiving capability and the balance between civil and political rights and economic, social and cultural rights’ (n 96) 5. For a full list of requests for invitations and country visits completed, with links to the reports, see ohchr ‘Country and Other Visits by Special Procedures Mandate Holders since 1998 – A–E’ accessed 11 March 2016. This number totals more than 22 as some recommendations contained two distinct requests. The figures are based on the author’s analysis of the results of a search of recommendations for China at accessed 28 June 2015. unhrc ‘Report of the Working Group on the Universal Periodic Review – China (including Hong Kong, China and Macao, China)’ (4 December 2013) un Doc A/HRC/25/5, para 21. The report on the Working Group’s mission to China is contained in unhrc ‘Report of the Working Group on the Issue of Discrimination Against Women in Law and in Practice – Mission to China’ (14 June 2014) un Doc A/HRC/26/39/Add.2. The Special Rapporteur’s report is contained in unhrc ‘Report of the Special Rapporteur on the Right to Food, Olivier De Schutter – Addendum’ (20 January 2012) un Doc A/ HRC/19/59/Add.1, and was presented orally at the hrc on 6 March 2012. For the Working Group’s report, see previous footnote; oral report was delivered at the 14th meeting of the 26th Session of the hrc: accessed 29 June 2016. Reply by Zhan Xianpeng of China: accessed 29 June 2016.

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but the country’s representative criticised the ‘unfounded’ analysis of regions he did not personally visit (Tibet and Inner Mongolia) and his report’s ‘misunderstanding’ of Chinese law and policy, particularly because it questioned food security for nomadic peoples and internal migrants.104 Similarly, after some general praise of the Working Group’s professionalism, China criticised its report, which cited lack of access to judicial tribunals, called for more effort to end gender-based violence and to prevent forced abortions, and for better treatment of independent women’s groups. China’s also levelled criticism at the Working Group for addressing issues which it claimed were not touched upon in-country.105 In sum, China has been visited seven times by mandate holders on freedom of religion (1994), arbitrary detention (1997, 2004), education (2003), torture (2005), right to food (2010), and discrimination against women (2013). But 14 outstanding invitations dating back to 2004 remain. Those mandates address freedom of association, summary and arbitrary executions, human rights defenders, independence of judges and lawyers, ‘disappearances’, health, toxic waste, housing, minority issues, religious freedom, water and foreign debt.106 China’s longstanding emphasis on ‘cooperation’ has enabled it to claim that it works well with mandate holders while keeping the number of visits quite small. Compared to the number of mandate holders requesting visits, and to the number of visits other major powers have received, China has received very few. Moreover, since Nowak’s 2005 visit, China has not issued invitations to any mandate holder focussed solely on civil and political rights. Mandate holders received since the 2005 torture examination are generally considered ‘soft’ mandates. China appears to fit the pattern Philip Alston and other mandate holders complained about: claiming ‘cooperation’ but rejecting many ‘pertinent’ topics in favour of ‘harmless’ ones. C Russia Russia has received visits from eight thematic mandate holders since 1998: sale of children, internally displaced persons, violence against women, racism, independence of judges and lawyers (twice), indigenous peoples, and cultural rights.107 Earlier, in July 1994, the Special Rapporteur on torture, Nigel Rodley, 104 See webcast at accessed 29 June 2016. 105 See n 1033. 106 As this chapter was being written, the Independent Expert on foreign debt was expected in China (the visit took place beginning 19 June 2015), but none of the others had been permitted to visit. 107 See ‘Russia’ in ohchr ‘Country and Other Visits by Special Procedures Mandate Holders since 1998 – N–Z’ (n 42).

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visited Russia. His visit was widely publicised and reportedly influenced penitentiary officers and higher officials.108 At the time of writing, 15 requests to visit Russia have not received responses. According to ohchr, Russia has accepted visits from the Special Rapporteur on internally displaced persons, and the Working Group on human rights and business, but neither visit has been scheduled. There are 13 unanswered requests from mandate holders on human rights defenders, freedom of expression, freedom of religion, toxic waste, extrajudicial executions, arbitrary detention, trafficking, torture, right to food, human rights and counter-terrorism, freedom of assembly, and the Working Group on African Descendants.109 Russia’s announcement of its 2006 candidacy for the hrc stated that ‘active cooperation’ with Special Procedures ‘constitutes an integral part’ of its policy. Russia listed the thematic mandate holders who had previously v­ isited.110 Moreover, it declared that the Special Rapporteur on violence against women and the Special Rapporteur on torture were scheduled to visit in the ‘current year’ – although the latter visit never happened.111 In 2009, when running again, Russia reiterated that it maintained a policy of ‘active cooperation’ with Special Procedures, mentioning recent visits by the Special Rapporteurs on racism and independence of judges and lawyers, stating that other (unnamed) visits were also planned.112 In 2013, when Russia ran for re-election to the hrc, it explained its relationship to Special Procedures slightly differently, declaring that it cooperated ‘on an ongoing basis’ but also insisting that ‘interaction 108 K Moskalenko, M Goldman and CA Fitzpatrick, ‘The High Commissioner for Human Rights in the Russian Federation’ in FD Gaer and CL Broecker (eds), United Nations High Commissioner for Human Rights: Conscience of the World (Brill 2013) 334. In unchr ‘Report of the Special Rapporteur, Mr Nigel S Rodley, Submitted Pursuant to Commission on Human Rights Resolution 1994/37 – Addendum – Visit by the Special Rapporteur to the Russian Federation’ (16 November 1994) un Doc E/CN.4/1995/34/Add.1, Rodley provided constructive suggestions, which Russian officials began to implement. 109 See ohchr ‘Country and Other Visits by Special Procedures Mandate Holders since 1998 – N–Z’ (n 42). 110 These included mandate holders on internally displaced persons, children in armed conflict, sale of children and violence against women: ‘Ad Memoire on the Question of Election of the Russian Federation to the un Human Rights Council’ accessed 11 March 2016. The unga created a Special Representative of the Secretary-General and a un staff member to address children in armed conflict. 111 Ibid. 112 unga 63rd Session Agenda Item 104 (c), ‘Letter dated 24 March 2009 from the Permanent Representative of the Russian Federation to the United Nations addressed to the Secretary-General’ (31 March 2009) un Doc A/63/797.

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between States and Special Procedures should be based on voluntary and constructive cooperation and that the Special Procedures should work in strict compliance with their mandates and with the Code of Conduct’.113 Russia also cited the mandate holders that had visited, mentioning missions by some un experts that are not included on the ohchr chart listing country visits.114 Earlier, at the upr, Russia presented itself as the most cooperative State with regard to Special Procedures. In its first national report Russia described itself as receiving ‘constant visits’, citing visits in 2006 (racism) and 2008 (independence of judges and lawyers).115 At the first upr, several States (France, Brazil, Czech Republic, Switzerland, Latvia and Slovenia) encouraged Russia to issue a standing invitation, and others (Denmark, uk) recommended visits by specific mandate holders (torture and extrajudicial executions). Mexico called on the Government to accept all requested visits. Russia noted, but did not accept these recommendations.116 At its second upr, Russia continued to claim it was especially cooperative with Special Procedures. The ohchr compilation cited new two visits (2009 on indigenous persons and 2012 on cultural rights),117 but Russia insisted that it had received four visits including the Special Representative on human rights and transnational corporations and the Special Representative of the Secretary-General on violence against children, the latter of which is not a Special Procedure.118 Russia also declared that it had received more than 20 113 See unga ‘Letter Dated 15 July 2013 from the Permanent Representative of the Russian Federation to the United Nations Addressed to the Secretary-General’ (17 July 2013) un Doc A/68/155. 114 Ibid. 115 unhrc ‘National Report Submitted in Accordance with Paragraph 15 (A) of the Annex to Human Rights Council Resolution 5/1’ (10 November 2008) un Doc A/HRC/WG.6/4/ RUS/1, para 10. 116 See unhrc ‘Report of the Working Group on the Universal Periodic Review – Russian Federation’ (5 October 2009) un Doc A/HRC/11/19; unhrc ‘Report of the Working Group on the Universal Periodic Review – Russian Federation – Addendum: Views on Conclusions and/or Recommendations, Voluntary Commitments and Replies Presented by the State under Review’ (5 June 2009) A/HRC/11/19/Add.1/Rev.1. Author’s further analysis of recommendations and responses is based on a search of the database on the Russian Federation at upr-Info, available at . 117 unhrc ‘Compilation Prepared by the Office of the High Commissioner for Human Rights in Accordance with Paragraph 5 of the Annex to Human Rights Council Resolution 16/21’ (11 February 2013) un Doc A/HRC/WG.6/16/RUS/2. 118 For the national report, see unhrc ‘National Report Submitted in Accordance with Paragraph 5 of the Annex to Human Rights Council Resolution 16/21 – Russian Federation’ (6 February 2013) un Doc A/HRC/WG.6/16/RUS/1, para 14. These procedures are not listed

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visits from the Council of Europe’s Committee for the Prevention of Torture.119 The ohchr compilation report also showed that none of the visits Russia had cited as ‘agreed’ – disappearances, internally displaced persons and torture – had taken place. It listed 11 unanswered requests for invitations.120 A number of States again recommended issuing a standing invitation (Montenegro, Guatemala, Slovenia, Paraguay and Czech Republic) and urged Russia to invite specific mandate holders.121 Russia did not accept those recommendations, but did accept recommendations for strengthening international ‘cooperation’ – lacking any specifics – from Cuba, China, and dprk, among others.122 Despite Russia’s 2008 boast of ‘constant’ cooperation with Special Procedures mandate holders, it has not kept pace with the requests received, as detailed above. The Special Rapporteur on sale of children visited in October 2000. The Special Rapporteur on freedom of expression asked for a visit in 2002. The mandate holder on internally displaced persons visited in 2003. The mandate holder on human rights defenders asked to visit in 2004. Russia accepted a visit from the Special Rapporteur on violence against women in December 2004. Requests were also made by the mandate holder on toxic waste (2005), the Working Group on Enforced or Involuntary Disappearances (2006 and annually thereafter), the Working Group on Arbitrary Detention, and the Special Rapporteur on human rights while countering terrorism (both 2008), as well as mandate holders on trafficking (2009), torture (2010), right to food and freedom of assembly (2011) and African descendants (2013), but no visit has been scheduled.123 Russia permitted visits from the mandate holders on racial discrimination (2006) and independence of judges and lawyers (2008).124 Since then, it seemed to turn to ‘softer’ mandates – for example, indigenous on the ohchr ‘Country and Other Visits by Special Procedures Mandate Holders since 1998 – N–Z’ (n 42). 119 unhrc ‘National Report’ (n 118) para 43. 120 unhrc ‘Compilation Prepared by the Office of the High Commissioner’ (n 117). 121 unhrc ‘Report of the Working Group on the Universal Periodic Review – Russian Federation’ (8 July 2013) un Doc A/HRC/24/14. 122 See unhrc ‘Report of the Working Group on the Universal Periodic Review – Russian Federation – Addendum: Views on Conclusions and/or Recommendations, Voluntary Commitments and Replies Presented by the State under Review’ (2 September 2013) un Doc A/HRC/24/14/Add.1, in which Russia accepts, partially accepts or rejects various recommendations. Additionally, the author analysed recommendations and responses as summarised on . 123 ohchr ‘Country and Other Visits by Special Procedures Mandate Holders since 1998 – N–Z’ (n 42). 124 Ibid.

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(2009) and then cultural rights (2012) – although it also permitted a follow-up visit by the mandate holder on independence of judges and lawyers (2013).125 Although there are many mandates waiting for answers – mandates that have sent States a large number of communications about alleged violations – (executions, disappearances, expression, arbitrary detention, human rights defenders, torture and freedom of assembly), Russia invited the mandate holders on indigenous and cultural rights, neither of which sends many case-based communications to States. Notably, Russia did not accept visits from mandate holders on extrajudicial executions or human rights defenders.126 Perhaps the fact that the cultural rights mandate was new, was sponsored by Cuba, and was considered to be a ‘soft’ mandate played a role alongside Russia’s own reported financial support of its work. During her visit, the Special Rapporteur on cultural rights acknowledged improvement in respect for cultural and other rights since Soviet times but cited a decrease more recently. Examining cultural heritage, religion and art, including artistic expression, and the right to challenge or regulate them, she raised questions about the ‘lack of effective implementation and concrete outcome’ of cultural policies. She discussed the impact of the Orthodox Church’s policies favouring ‘traditional values’ on other religious communities and on women, as well as those of local authorities in Chechnya. She also discussed the Roma, the disabled, and the lesbian, gay, bisexual and transgender community.127 Russia’s response to her report was chilly: its representative told the hrc that freedom of expression is not absolute; that there was no discrimination against sexual minorities; that the comments on the impact of ‘traditional values’ on women were unsubstantiated; and that her references to the North Caucasus were ‘beyond the framework’ of her visit since she had not visited those areas personally.128 The Rapporteur replied a few days later, stating

125 Ibid. 126 See Russia’s responses to recommendations in unhrc ‘Report of the Working Group’ (n 122). 127 unhrc ‘Report of the Special Rapporteur in the field of Cultural Rights, Farida Shaheed – Addendum – Mission to the Russian Federation (16–26 April 2012)’ (11 March 2013) un Doc A/HRC/23/34/Add.1. 128 Ibid. See also oral response by Russia: un ‘Mr. Serguei Kondratiev speaking at unhrc 23rd Session’ (UNWebTV, 31 May 2013) accessed 29 June 2016.

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she had discussed some of these points with the Russian representatives and would continue to do so.129 Similarly, when the Special Rapporteur on the independence of judges and lawyers completed her follow-up mission and reported to the Council a year later,130 Russia stated it did not agree with all her recommendations or with her view of the professional activities of lawyers. Where the mandate holder pointed to excessive powers of presidential courts, and criticised the constitutional court, Russia explained that safeguards existed that she had not taken into account.131 As set forth in the Outcome of the review of the Council,132 Russia asked for its comments to be published as an annex to her report.133 The Rapporteur rebutted Russia’s public remarks quite firmly, pointing to the President’s extensive powers regarding judicial appointments, and interference, threats, and intimidation – in some cases even murder – that undermine the legal profession and judges.134 In sum, Russia’s poor record in scheduling visits – particularly those focussed on civil and political rights and case-oriented mandates – is clear. A ­ lthough it has been visited eight times, there are 15 mandate holders waiting for approval of requests. Recently, Russia has permitted visits from several considered to be ‘softer’ mandate holders. When the mandate holders have reported orally, Russia has mounted a vigorous defence, including challenging some of the substantive allegations. Ominously, it has set forth conditions for visits referencing 129 Oral response of Farida Shaheed: un ‘Clustered Interactive Dialogue with the Special Rapporteur on Cultural Rights’ (UNWebTV, 3 June 2013) accessed 11 March 2016. 130 unhrc ‘Report of the Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul – Addendum – Mission to the Russian Federation’ (30 April 2014) un Doc A/HRC/26/32/Add.1. 131 See oral response by Russia: un ‘Mr. Serguei Kondratiev speaking at unhrc 26th Session’ (un WebTV, 13 June 2014) ˂http://webtv.un.org/meetings-events/human-rights-council/ regular-sessions/26th-session/watch/clustered-id-sr-on-independence-of-judges-and -lawyers-and-sr-on-migrants-12th-meeting-26th-regular-session-of-human-rights-coun cil/3624290556001˃ accessed 29 June 2016. 132 A/HRC/RES/16/21, para 25. 133 Such publication of state views is now routine. 134 un ‘un Web tv: the United Nations Live and on Demand’ accessed 11 March 2016.

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the Code of Conduct and playing the procedure card.135 Russia has affirmed its ‘cooperation’ in the context of elections and the upr, while taking measures that reveal how carefully it picks and chooses which mandate holders it will receive, cooperate with, and challenge publicly. D Algeria Algeria was elected to a one-year term on the hrc in 2006. In 2013, it ran again and submitted a document with pledges in which Algeria recalled that, in March 2010, it had invited seven thematic mandate holders to conduct working visits in Algeria. It also pledged to ‘strengthen its cooperation’ with Special Procedures by extending invitations to other mandate holders to visit.136 The section of the upr compilation report about ‘cooperation’ with Special Procedures prepared before the first upr in 2009 shows Algeria had received mandate holders on freedom of religion (2002) and violence against women (2007) but had postponed a visit from the Special Rapporteur on freedom of expression (in February 2005), and that requests were outstanding from the Working Group on disappearances since 2000, and from Rapporteurs on torture (2007), extrajudicial executions (2007), and human rights and counterterrorism (2006).137 The un’s stakeholders report for the first upr noted that Amnesty International claimed that Algeria had ‘failed to cooperate’ with Special Procedures.138 During Algeria’s first upr review, Germany and the uk asked about cooperation with Special Procedures on extrajudicial executions, torture, ­disappearances, and countering terrorism.139 Latvia asked whether Algeria would accept a standing invitation,140 and Brazil and the Netherlands urged 135 See especially unhrc ‘Report of the Special Rapporteur in the Field of Cultural Rights, Farida Shaheed – the Right to Freedom of Artistic Expression and Creativity – Addendum – Mission to the Russian Federation: Comments by the State on the Report of the Special Rapporteur’ (24 May 2013) un Doc A/HRC/23/34/Add.3 on cultural rights mandate holder’s visit. 136 unga ‘Note Verbale Dated 2 July 2013’ (n 40) including para 56. 137 unhrc, Working Group on the Universal Periodic Review, ‘Compilation prepared by the Office of the High Commissioner for Human Rights in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21 – Algeria’ (26 March 2008) un Doc A/ HRC/WG.6/DZA/2. 138 unhrc ‘Report of the Working Group on the Universal Periodic Review – Algeria’ (6 March 2008) un Doc A/HRC/WG.6/1/DZA/3. 139 unhrc ‘Report of the Working Group on the Universal Periodic Review – Algeria’ (23 May 2008) un Doc A/HRC/8/29, paras 29 (uk) and 44 (Germany). 140 Ibid para 61.

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Algeria to facilitate visits.141 Algeria responded cautiously to these inquiries, stating that such visits must be factual142 and that it would ‘consider the request for visits of mandate holders keeping in mind its statutory right to determine the appropriateness of such visits’.143 In a more frank response at the very end of the review, Algeria’s representative explained that some of the mandates remain pending ‘because they were made in a sensitive political moment’.144 Algeria received two mandate holders before the second upr: on freedom of expression and the right to housing. It also accepted a request for a visit from the mandate holder on the right to clean water and sanitation (which has not yet taken place). Longstanding requests from the Working Group on disappearances (first made in 2000), and the Special Rapporteurs on torture, extrajudicial executions, and human rights while countering terrorism remain unanswered, as do more recent requests from the Working Group on Arbitrary Detention, the Rapporteur on sale of children, and the Independent Expert on foreign debt.145 In a report on his country visit, Special Rapporteur Frank La Rue concluded that Algeria ‘has come a long way from the Black Decade, during which journalists paid a tremendously high price’.146 He cited concerns about the laws, noted some improvements made, and also discussed acts of ‘intimidation’ of journalists and bloggers while he was present, including the alleged refusal to issue visas to foreign journalists in the weeks before his visit.147 La Rue also discussed freedom of assembly and association in Algeria.148 The Government issued formal comments on La Rue’s findings, beginning with criticism of the procedure followed, particularly the alleged failure to show the report to the country’s officials before it was issued, and alleging that the Special Rapporteur exceeded his mandate, as Algeria considered that freedom of association and assembly was not part of his mandate.149 The Algerian Government also 141 Ibid paras 62–63. 142 Ibid para 67. 143 See unhrc ‘Report of the Working Group on the Universal Periodic Review – Algeria’ (16 April 2008) un Doc A/HRC/WG.6/1/DZA/4, para 69. 144 Ibid 13. 145 See n 20. 146 unhrc ‘Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Frank La Rue’ (12 June 2012) un Doc A/HRC/20/17/ Add.1, para 8. 147 Ibid paras 40–41. 148 Ibid paras 73–79 (assembly) and 80–87 (association). 149 unhrc ‘Rapport présenté par le Rapporteur spécial sur la promotion et la protection du droit à la liberté d’opinon et d’expression’ (19 June 2012) un Doc A/HRC/20/17/Add.3, para 4ff.

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criticised the ‘spirit of deliberate selectivity that dominated the draft report’ and many specific points.150 At the hrc, Algeria claimed that La Rue, ‘in contravention of the Code of Conduct, drew hasty conclusions’ that were wrong, and ignored Algeria’s response on one very visible case.151 La Rue publicly affirmed that freedoms of association and assembly were integral to freedom of expression.152 In 2015, Algeria permitted a visit from the Special Rapporteur on the right to education,153 but the long-waiting other mandate holders have not yet been allowed to visit. Those focussed on key civil and political rights issues have remained unable to visit the country. Despite the fact that the country’s most severe crisis is over, Algeria continues to refuse visits from the case-oriented Special Procedures. In sum, after the unhappy experience with La Rue, Algeria appears to fit the pattern of claiming ‘cooperation’ but rejecting the pertinent topics and accepting ‘harmless’ ones. E Iran Iran had been the subject of a country-specific mandate created by the chr from 1984 until 2002, and it had allowed some of those mandate holders to visit the country. The first Special Representative on human rights in Iran, Andres Aguilar, was not allowed to visit,154 but his successors visited the country on four occasions. Reynaldo Galindo Pohl (1986–95), was permitted three country 150 Ibid paras 4 and 9–10. 151 Ibid para 5; ohchr ‘Webcast of the 4th Meeting’ (ohchr, 19 June 2012) accessed 29 June 2016. 152 unhrc 20th Session, ‘Oral Remarks of Mr. Frank La Rue, Special Rapporteur on F­ reedom of expression’ (20 June 2012), accessed 29 June 2016. 153 unhrc ‘Report of the Special Rapporteur on the Right to Education, Kishore Singh – Addendum – Mission to Algeria’ (25 June 2015) un Doc A/HRC/29/30/Add.2. 154 See Iran Human Rights Documentation Center, ‘A History of United Nations Special Representatives and Rapporteurs in Iran’ acces­ sed 16 February 2016; R Shadan, ‘Iran and Human Rights Organs of the United Nations’ (Iran Human Rights Review, October 2014) accessed 16 February 2016. See also unchr ‘Report on the Human Rights Situation in the Islamic Republic of Iran by the Special Representative of the Commission on Human Rights, Mr Reynaldo Galindo Pohl, appointed pursuant to Resolution 1986/41’ (28 January 1987) un Doc E/CN.4/1987/23.

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visits between 1990 and 1992, but barred after that.155 The report of his 10-day tumultuous first visit, replete with details of mobs blocking meetings at the un offices, official refusals of visits to a key cleric under house arrest, and visits taken to the notorious Evin prison and elsewhere, makes fascinating ­reading.156 Maurice Copithorne, Galindo Pohl’s successor (1995–2002), was allowed only one visit, in 1996, for six days. He described his meetings with high level government officials as consisting mainly of Iranian criticism of the political nature of the resolution creating the mandate.157 The year before Copithorne’s 1996 visit, the Iranian Government permitted a visit from the Special Rapporteur on religious intolerance, the late Abdelfattah Amor of Tunisia.158 A few years later, in 2002, when the country-specific mandate ended, Iran extended a standing invitation to thematic Special Procedures mandate holders and received visits from five of them: arbitrary detention (2003), freedom of expression (2003), migrants (2004), violence against women (2005) and right to housing (2005). Despite the standing invitation to all Special Procedures, Iran had not permitted any mandate holder focussed on Iran to visit between 2006 and 2010,159 and has not allowed anyone since.160 155 See table cited in previous footnote. 156 unchr ‘Report on the Human Rights Situation in the Islamic Republic of Iran by the Special Representative of the Commission on Human Rights, Mr Reynaldo Galindo Pohl, pursuant to Commission Resolution 1989/66’ (12 February 1990) un Doc E/CN.4/1990/24. See also unchr ‘Report on the Human Rights Situation in the Islamic Republic of Iran by the Special Representative of the Commission on Human Rights, Mr Reynaldo Galindo Pohl, pursuant to Resolution 1990/79’ (13 February 1991) un Doc E/CN.4/1991/35, paras 328–460; unchr ‘Report on the Human Rights Situation in the Islamic Republic of Iran by the Special Representative of the Commission on Human Rights, Mr Reynaldo Galindo Pohl, pursuant to Commission Resolution 1991/82’ (2 January 1992) un Doc E/CN.4/1992/34, paras 202–471. 157 unchr ‘Report on the Situation of human Rights in the Islamic Republic of Iran, prepared by the Special Representative of the Commission on Human Rights, Mr Maurice Copithorne (Canada), pursuant to Commission Resolution 1995/68 of 8 March 1995 and Economic and Social Council Decision 1995/279 of 25 July 1995’ (21 March 1996) un Doc E/CN.4/1996/59, para 20ff and especially para 22. 158 unchr ‘Report Submitted by Mr Abdelfattah Amor, Special Rapporteur, in accordance with Commission on Human Rights Resolution 1995/23’ (9 February 1996) un Doc E/ CN.4/1996/95/Add.2. 159 A Special Rapporteur on human rights in Iran was established in 2010. Iran did not permit the mandate holder to visit. There were reportedly some efforts to encourage visits from thematic rapporteurs during this period, and from the High Commissioner, but ohchr reportedly discouraged any such visit until the country-specific mandate went first. 160 See n 20. See also Iran Human Rights Documentation Center, ‘A History of United Nations Special Representatives and Rapporteurs in Iran’ (n 154).

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Meanwhile, the hrc established a new country mandate on Iran, but Iran has not yet agreed to terms of reference to receive the Special Rapporteur. When Iran appeared for its upr in 2010, its delegation head publicly stressed the Government’s ‘continuous and full cooperation’ with ohchr and pointed to Iran’s standing invitation to Special Procedures. Iran pointed out the visits of ‘several special rapporteurs’ despite the fact that none had visited in the past five years.161 A number of States inquired about this contradiction in written questions: Belgium pointed to Iran’s official report which affirmed there were ‘plans under consideration’ for other visits. Belgium and others pressed for specific details on the ‘plans’ as well as visits requested, to which Iran did not respond. Ireland and Denmark asked whether the Special Rapporteur on torture would be permitted to visit; the Dutch representative inquired about letting in rapporteurs to gather information on reported violations connected to the 2009 presidential elections and demonstrations that followed.162 Others raised the issue during the review session, making recommendations for Iran to implement its standing invitation and/or allow mandate holders to visit (Luxembourg, Czech Republic, Chile, usa, Spain, Austria, and the United Kingdom).163 In fact, although a number of countries (usa, Australia, New Zealand, France, and the Netherlands) specifically called for the Special Rapporteur on torture to be permitted a visit, Iran rejected these recommendations claiming generally that they were ‘inconsistent’ with the institution-building text or not in conformity with the country’s existing laws, pledges or commitments.164 At the second upr, in August 2014, and despite the absence of any visit in the interim, Iran’s national report once again claimed that the country had ‘continuously interacted’ with ohchr including the Special Rapporteur on Iran.165 While no longer claiming its cooperation was ‘full’, Iran nonetheless stressed its ongoing commitment to ‘dialogue and cooperation’.166 However, Iran’s actual record was clearly revealed through the un’s compilation report,167 which referenced the standing invitation and the earlier visits, and also displayed a 161 unhrc ‘Report of the Working Group on Iran’ (17 February 2010) un Doc A/HRC/ WG.6/7/L.11. 162 Written questions are in a document online at accessed 16 February 2016. 163 unhrc ‘Report of the Working Group on Iran’ (n 161) paras 90.26 (Luxembourg), 27 (Czech Republic), 28 (Chile), 29 (usa), 91.3 (Spain), 4 (Austria) and 92.10 (United Kingdom). 164 Ibid paras 92.5 (usa), 6 (Australia), 7 (New Zealand), 8 (France) and 9 (Netherlands). 165 unhrc ‘Report of the Working Group on Iran’ (4 August 2014) un Doc A/HRC/WG.6/20/ IRN/1. 166 Ibid para 124. 167 unhrc ‘Report of the Working Group on Iran’ (18 August 2014) un Doc A/HRC/WG.6/20/ IRN/2.

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large blank space about any visits since the 2010 upr. The compilation noted that during the first review Iran had accepted visit requests by the Working Group on disappearances, and the Special Rapporteurs on extrajudicial executions and on freedom of religion, but that none of these mandate holders had visited the country. There were also outstanding requests for invitations from the mandate holders on freedom of expression, right to food, independence of judges and lawyers, and the country-specific rapporteur. In all, there were at least six mandate holders seeking to visit in 2014.168 The un compilation noted that ‘the Secretary-General regretted that, since 2005, no thematic mandate holders had been invited to visit the country, despite a standing invitation to all thematic mandate holders in 2002 and a pledge to invite two such experts in 2012’.169 Additionally, the compilation pointed out that the Working Group on disappearances had transmitted 537 cases to Iran since its establishment (1981) of which 518 ‘remained outstanding’.170 Nine States raised questions and made recommendations about Iran’s standing invitation to and actual visits to the country.171 Eight others recommended a visit by the country-specific rapporteur.172 Two States urged continued cooperation: with Special Procedures in general (Uzbekistan)173 and the Iran country mandate in particular (Guatemala).174 In sum, after allowing some Iran-specific country mandate holders to visit the country, Iran’s leaders defeated the mandate in 2002, issued a standing invitation to permit thematic mandate holders into the country and allowed several visits. But Iran stopped them in 2005, making a mockery of the term standing invitation. The hrc’s re-establishment of a country mandate on human rights in Iran has not improved the situation. Iran’s upr presentations

168 Ibid. 169 Ibid para 9. 170 Ibid para 10. 171 unhrc ‘Report of the Working Group on the Universal Periodic Review’ (22 December 2014) un Doc A/HRC/28/12. These States included Finland (written question), Belgium (written question), Latvia (paras 101 and 136.69), Bosnia-Herzegovina (para 138.73), Costa Rica (para 138.75), Germany (para 138.76), Lithuania (para 138.79), Peru (para 138.80) and Poland (para 138.80). 172 These included Australia (para 138.72), Sweden (para 138.70), usa (para 138.71), Hungary (para 138.78), Portugal (para 138.81), Korea (para 138.82), Romania (para 138.83) and Slovenia (para 138.84). 173 Ibid para 138.68 (Uzbekistan). 174 Ibid para 138.77 (Guatemala).

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emphasise cooperation with un mechanisms, but there is little scrutiny to be had. Iran’s ongoing rhetorical emphasis on cooperation is belied by its actions regarding the Rapporteurs. F Cuba Like Iran, Cuba’s engagement with Special Procedures has been heavily influenced by the on-again off-again creation of a country-specific mandate on Cuba.175 Moreover, Cuba had long refused to accept the human rights paradigm focussed on individuals, rather than societal forces.176 Despite this, Cuba’s national report and presentations at the upr in November 2008 emphasised its ‘cooperation with those human rights mechanisms that are applied universally and on a non-discriminatory basis’, meaning those that are not c­ ountry-specific. Cuba stressed that it would not accept any ‘value judgements’ reached under the country-specific mandates ‘imposed’ on the chr by the usa.177

175 The first Cuba mandate, in 1988, sent a Working Group of 6 to visit the country. See Report at E/CN.4.1989/46 and Corr. 1. In 1991, a Special Representative was appointed in unchr Res 1991/68 (6 March 1991) as contained in un Doc E/CN.4/1991/91, 156. This then became a Special Rapporteur in 1992 (unchr Res 1992/61 (3 March 1992) un Doc E/CN.4/1992/84, 141), a post that continued until 1998 when a draft resolution was defeated 16–19–18. From 2002 to 2007 there was a personal representative of the sg on Cuba. This post was discontinued in 2007: accessed 16 February 2016. 176 See e.g. unchr ‘Report by Mr Maurice Glèlè-Ahanhanzo, Special Rapporteur on Contemporary forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, submitted pursuant to Commission on Human Rights Resolution 2000/14’ (6 February 2001) un Doc E/CN.4/2001/21, paras 20–24, in which Cuba tells the Special Rapporteur on racism (at para 21): ‘… the Cuban Government considers that the prevalence of individualistic and discriminatory models of political, social and economic organization which … have the effect of exacerbating social exclusion and the marginalization of countries, peoples, ethnic groups, minorities and other categories of social groups and i­ndividuals, creates a context conducive to the development of contemporary manifestations of racism and xenophobia’; and (at para 22) ‘In Cuba’s opinion, current manifestations of racism…reflect…: 2. The individualist approach adopted to the question of the rights of human beings, without relating the duties of individuals, groups and peoples to the enjoyment of rights by the rest of humanity…. 8. The principle of equal opportunities promoted by the liberal bourgeois democracies and by neo-liberal capitalist globalization in the context of a world where inequity prevails…’. 177 unhrc ‘National Report Submitted in Accordance with Paragraph 15(A) of the Annex to Human Rights Council Resolution 5/1’ (4 November 2008) un Doc A/HRC/WG.6/4/ CUB/1, para 128.

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The un’s compilation178 for Cuba’s first upr noted that there was no standing invitation and that there had been only three thematic rapporteurs visits to Cuba as of 2008, namely, from the mandate holder on violence against women (1999), the Working Group on mercenaries (1999), and, eight years later, from the rapporteur on right to food who visited in November 2007 just prior to Cuba’s upr. Mandate holders on freedom of expression and freedom of association had requested visits but the Cuban Government rejected them.179 The un compilation also noted that on her visit in 1999, the Special Rapporteur on violence against women urged Cuba to accept visits from those mandate holders who requested them, including on torture, freedom of expression, and religious freedom.180 Eight years later, the Special Rapporteur on the right to food recommended that Cuba extend a standing invitation.181 The Special Rapporteur on violence against women noted a lack of statistical data, and called for creation of shelters for victims of violence against women. As a result, ‘Cuba denounced the lack of neutrality in the report’182 and ‘rejected’ its recommendation for Cuba to accept independent civil and political organisations to act as watchdogs, claiming this stemmed from false information and malicious sources.183 When Cuba was approached by other mandate holders, it also challenged the data they presented as ‘false’.184 The Special Rapporteur on the right to food, for example, raised concerns about health and medical care problems185 which Cuba dismissed as ‘groundless’ allegations.186 These hostile responses to mandate holders were made despite Cuba’s earlier pledges when seeking election to the hrc in 2006187 when it confirmed plans to promote the right to food, cultural rights, the right to peace, and international solidarity188 – that is, the mandates Cuba had sponsored in the chr and the hrc. 178 unhrc ‘Compilation Prepared by the Office of the High Commissioner for Human Rights, in Accordance with Paragraph 15(B) of the Annex to Human Rights Council Resolution 5/1’ (18 December 2008) un Doc A/HRC/WG.6/4/CUB/2. 179 Ibid para 8. 180 Ibid. 181 Ibid. 182 Ibid para 17. 183 Ibid para 25. 184 Ibid para 30. 185 Ibid para 16. 186 Ibid para 47. 187 See Letter to the un Secretary-General from the Cuban Mission to the un (4 April 2006) accessed 11 February 2016. 188 un Doc A/HRC/WG.6/4/CUB/2 (n 178) para 53.

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At the upr, Cuba continued to emphasise its ‘traditional international cooperation’ with human rights mechanisms applied on a ‘universal and nondiscriminatory basis’.189 Cuba boasted of its February 2009 invitation to the Special Rapporteur on torture, which some countries (uk, Canada, Jordan, Chile and Switzerland) commended.190 However, that visit never took place. Special Rapporteur Manfred Nowak reported publicly that despite offering several dates for a visit during that year, none was accepted by Cuba.191 Several States including France, Canada and Switzerland, encouraged Cuba to extend standing invitations or to approve requests for invitations by mandate holders.192 Austria mentioned the conclusions of the Working Group on Arbitrary Detention, which called for correcting the arbitrary detention of 79 people in Cuba.193 In response, Cuba declared that there are no prisoners of conscience in the country and that human rights defenders are respected and ‘no one is harassed, detained or punished for exercising, enjoying or defending human rights’, and that ‘freedom of expression is guaranteed…’.194 At that first upr, Cuba supported recommendations (Brazil and Bhutan) to cooperate with un human rights mechanisms,195 and to strengthen those mechanisms (Iran, dprk, Viet Nam and Zimbabwe).196 It also supported recommendations to receive other mandate holders in general,197 but would only give further consideration to the recommendations to extend a standing invitation or for receiving the Rapporteurs on human rights defenders, freedom of expression and freedom of religion.198 Cuba rejected recommendations from Israel, the uk, Canada, Australia, Slovakia, Italy and others that addressed freedom of expression, prisoners of conscience, and legal reform.199 Cuba cited its sovereign right to choose its own political and juridical system, and that no country can accept any policy ‘that contributes to the implementation of a 189 unhrc ‘Report of the Working Group on the Universal Periodic Review – Cuba’ (5 October 2009) un Doc A/HRC/11/22, para 43. 190 Ibid para 47. 191 See ‘Cuban Visit Will Not Take Place, says un Expert on Torture as he Voices Frustration’ (un News Centre, 9 June 2010) accessed 11 February 2016. 192 un Doc A/HRC/11/22 (n 189) paras 82, 79 and 86 respectively. 193 Ibid para 96. 194 Ibid paras 114–16 and 118. 195 Ibid paras 130–34 and 136. 196 Ibid paras 130–35. 197 Ibid paras 130–37. 198 Ibid paras 131–37 and 139. 199 Ibid para 132.

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policy designed by a foreign superpower with the objective of destroying the legitimate constitutional order freely chosen by its people’.200 At the second upr in May 2013, Cuba had not received a single additional visit. Nevertheless, it insisted that it ‘maintains a high level of cooperation and interaction with un human rights procedures’,201 pointing to the ‘comprehensive information’ it provided in response to communications from Special Procedures.202 As for the country visits, Cuba said it ‘remains strongly committed to continuing to issue invitations’.203 Four visit requests were cited in the un compilation report (violence against women, and freedoms of religion, association, and expression),204 and it was emphasised that ‘[t]he Government contested all the communications, providing detailed information … and stating … that the allegations were untrue and politically motivated’.205 Not surprisingly, written questions again focussed on standing invitations and the need for follow-up to the invitation to the Special Rapporteur on torture.206 The outcome document cited Cuba’s response that it ‘maintained a high level of cooperation and interaction with the procedures and mechanisms of the un system in…human rights’.207 Recommendations from Russia, Bolivia and Zimbabwe, encouraging Cuba to ‘continue’ or ‘increase’ its cooperation, were accepted, but recommendations from others (Austria, Spain, Hungary, El Salvador, Finland, and France) to extend a standing or ‘open’ invitation were merely ‘noted’.208 Similarly, Cuba ‘noted’ but did not accept recommendations to receive the Special Rapporteur on torture whose visit had been promised some time earlier (Spain, Mexico) or the Special Rapporteur on freedom of assembly (Chile).209

200 Ibid. 201 unhrc ‘National Report Submitted in Accordance with Human Rights Council Resolution 16/21, Annex, Paragraph 5’ (7 February 2013) un Doc A/HRC/WG.6/16/CUB/1, para 145. 202 Ibid para 146. 203 Ibid para 157. 204 unhrc ‘Compilation Prepared by the Office of the High Commissioner for Human Rights in Accord with Paragraph 5 of the Annex to Human Rights Council Resolution 16/21’ (11 February 2013) un Doc A/HRC/WG.6/16/CUB/2, para 21. 205 Ibid para 54. 206 ‘Universal Periodic Review Second Cycle – Cuba’ Questions in Advance and Add 1 accessed 11 February 2016. 207 unhrc ‘Report of the Working Group on the Universal Periodic Review – Cuba’ (8 July 2013) un Doc A/HRC/24/16, para 24. 208 Ibid paras 170.98 and 170.107–110. 209 Ibid paras 170.111–113.

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Examining the record closely, Cuba’s interest in ‘cooperation’ for country visits seemed to be most vigorous at upr sessions and when seeking election to the Council, and not in actually bringing to the country those mandate holders who address specific alleged violations involving specific individuals. This conclusion is bolstered by looking at Cuba’s record of total rejection of cases communicated by mandate holders, as described by the Secretariat in the upr compilations. v

Improving Country Visits: The Way Forward

The hrc’s founding resolution instructs those who are elected as members to ‘fully cooperate’ with the Council.210 Indeed, cooperation with un ­mechanisms has become a practical step necessary to achieve compliance with human rights standards. As flawed as upr may be, the process prominently scrutinises the issue of cooperation. States prominently mention their ‘cooperation’ with Special Procedures when they appear before upr and many refer to it in pledges made when they seek election to the Council. After 18 years of ohchr record-keeping, the largest number of thematic visits to any country amounts to just 21. As illustrated above, scrutiny is not universal. Non-cooperating States manage to avoid scrutiny in many ways, including by picking and choosing ‘harmless’ topics instead of those Alston called ‘pertinent’. More recently, the Code of Conduct and other measures have been employed to diminish visibility and activity of mandate holders taking country visits. Manfred Nowak, in his final report to the Council, reflected on invitations for country visits, noting that it seems that several Governments invited me for other reasons, such as earlier pledges to the Human Rights Council in order to be elected and a general political desire to show to the international community that they actively cooperate with Special Procedures.211 Nowak also remarked on obstruction that may follow in sensitive situations once the mandate holder arrives: 210 unga (n 2). 211 unhrc ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak: Study on the Phenomena of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in the World, Including an Assessment of Conditions of Detention’ (5 February 2010) un Doc A/HRC/13/39/Add.5, para 18.

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The authorities of the country are under considerable pressure to hide the real situation, to monitor my activities with distrust and to make my fact-finding as difficult as possible. … Sometimes, it needed considerable efforts from my side to break through a wall of silence or a wall of lies which had been erected by the authorities when instructing detainees about how they should interact with me.212 Alston has reflected, more simply, that ‘there is a risk that country visits will be treated by some Governments as a temporary inconvenience to be endured rather than as an occasion for serious stock-taking to enhance respect for human rights’.213 These concerns, and others made by mandate holders in candid moments or when reflecting on their achievements at the end of a mandate, raise questions of what can be done to ensure universal acceptance of country visits, to ensure global coverage by mandate holders, to address long-delayed or unanswered requests for invitations to visit, and to avoid situations where countries declare themselves in cooperation with Special Procedures when they are in fact ‘gaming the system’ to avoid serious scrutiny by politically unwelcome mandates. While permitting a visit is a decision for each State, there is an official expectation that States will cooperate with mandate holders. At issue is how to improve this record. Some advisers might counsel continuing with the current methods which have already brought substantial growth in the number of standing invitations and actual visits, including to never-visited States. But another approach is to use existing machinery more effectively, and more strategically. Cooperation could be improved, and there are new tools which could be better utilised. There are already many new pressures on mandate holders. Stakeholders and victims are demanding redress for abuses, and look to mandate holders for real results. States are demanding more precise verification of facts as outlined in the Code of Conduct. In view of the large number of communications handled annually by a core group of mandates, ongoing accuracy and verification of facts becomes quite important to their credibility and effectiveness, in both communications and visits to the States. Another possible tool for the mandate holders is the presence and activity of national human rights institutions, along with opportunities for increased access through country visits by the High Commissioner or his deputies in New York or Geneva. Other new and developing human rights mechanisms and institutions such as the upr, the Presidency of the hrc, and the High Commissioner for 212 Ibid. 213 Alston (n 8) para 25.

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Human Rights can help increase a mandate holder’s capacity to obtain an invitation for a country visit. The upr has already caused States, including some that are resistant to scrutiny, to attempt to appear ‘cooperative’ – especially if they are Council members. The Council could engage on the issue of making the machinery that is in place function more effectively. For example, it could instruct the President to intervene confidentially to try to obtain permission for country visits when requests for invitations are long delayed and unanswered. Alternatively, if the President does not want to personally engage on the issue, they could appoint a designated special envoy to review and examine compliance and cooperation on country visits. That special envoy could report publicly prior to hrc elections and upr reviews on how standing invitations are or are not honoured by States, or the State concerned could be asked to reply in public to concerns raised. An alternative would be to ask the national human rights institution in the country concerned, if it is compliant with the Paris Principles on national human rights institutions,214 to report publicly at the hrc on the State’s cooperation with mandate holders, both as to standing invitations and actual conduct of visits. Finally, States could be encouraged to ask more questions during the upr not only about cooperation and invitations to specific mandate holders, but also about the implementation of the recommendations made in the reports on the country visits. The mandate holders could also use existing mechanisms and reports more effectively. For example, they could promote transparency about the interactions between themselves and Member States on the issue of country visits by discussing such issues in their annual reports, or in a special addendum to the annual report on this issue. Just as some mandate holders publish follow-up reports on communications, others could publish correspondence about such visits such as in the case of Manfred Nowak’s attempted visit to Zimbabwe or Cuba, or those between the mandate holders and the Russian Federation or Thailand. Elsewhere, I have suggested that the High Commissioner should explore the option of taking a mandate holder with him/her on certain country visits.215 The mandate holders themselves could establish a time-limit regarding requests for invitations – when the time-limit expires, the mandate holder could publish a report without visiting the State concerned. In many ways this would mirror the practice of some treaty bodies regarding inquiry procedures: when a State does not accept a visit requested, the treaty body may issue a report without a visit, based on hearings or other materials examined during the 214 unga Res 48/134 (20 December 1993) un Doc A/RES/48/134, Annex. 215 Gaer (n 1088) 133.

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inquiry.216 While there is some concern that such reports might raise conflicts with the requirements set down in the Code of Conduct, there are reasons to consider such reports in keeping with the terms of Resolutions 60/251 and 5/2, which call upon States to take preventive action and to act when there are human rights emergencies. All of the above could be implemented, if Member States see the problem of ‘picking and choosing’ as one that has hampered the effectiveness of the un human rights programme as carried out by the hrc. Without a new approach, the problem of manipulation of the number of mandate holder visits and of the welcoming of ‘soft’ mandates rather than politically unwelcome ‘hard’ ones will continue. 216 See inquiry reports of the Committee against Torture on Egypt (1996) and Nepal (2012) accessed 10 February 2016.

chapter 4

The un Special Procedures System: The Role of the Coordination Committee of Special Procedures Najat Maalla M’jid Abstract The Coordination Committee of Special Procedures (cc) has evolved since its creation in 2005, playing a stronger and more proactive role in supporting mandate holders and strengthening the effectiveness and the independence of the Special Procedures (sp) system. The cc has taken action in relation to a considerable number of issues, resulting in increased synergies between mandate holders, improved sp working methods, better interaction with States and other stakeholders, mandate holders speaking with one voice, and higher visibility of the sp system. However, there are still challenges for the cc to overcome in order to better fulfil its role. This short chapter argues that if the cc is to play a stronger coordinating role, a series of measures will be required, including improving the cc’s working methods, lobbying for the allocation of sufficient resources to the increasing number of sp, and advocating for a new status for the cc itself.

Keywords Coordination Committee – annual meeting – reforms – support – assistance – cooperation – working methods

i

Introduction

The Coordination Committee of Special Procedures has evolved since its creation in 2005. It plays an increasingly stronger and more proactive role in supporting mandate holders and strengthening the effectiveness and the independence of the Special Procedures (sp) system. The Coordination Committee has taken action in relation to a considerable number of issues, resulting in increased synergies between mandate holders, improved sp working

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methods; better interaction with States and other stakeholders,1 mandate holders speaking with one voice, and greater visibility of Special Procedures. Despite those important roles and advances, there are still challenges for the Coordination Committee to overcome in order better to fulfil its role. In particular, it needs to ensure: better support to mandate holders, sustainable cooperation between Special Procedures and States; cross-fertilisation and improved mainstreaming between and among human rights mechanisms; monitoring and follow-up of the implementation of recommendations; and greater effectiveness and independence of Special Procedures. Furthermore, the Coordination Committee has to deal with the challenging context marked by an increasing number of Special Procedures, and the decreasing resources dedicated to that system.2 It will be argued that, if the Coordination Committee is to play a stronger coordinating role, a series of measures will be required including improving the Coordination Committee’s working methods, lobbying for the allocation of sufficient resources to the increasing number of sp, and advocating for a new status for the Coordination Committee itself. This contribution focusses on the role of the Coordination Committee in strengthening the Special Procedures system. In doing so, it draws upon the  author’s eight years of experience as former Special Rapporteur (May 2008–June 2014) and her three years of experience as a member – including as Chair and Rapporteur – of the Special Procedures Coordination Committee (2009–2012). ii

Background to the Establishment of the Coordination Committee

Since 1994, annual meetings of Special Procedures mandate holders have been organised in compliance with the Vienna Declaration and Programme of Action.3 That Programme of Action underlined the importance of preserving and strengthening Special Procedures, and specified that the system should be enabled to harmonise and rationalise its work through periodic meetings. 1 For more on the Coordination Committee’s work in different contexts within the Special Procedures system, see the contributions of Domínguez-Redondo, Connors and Limon to this collection. 2 For more on resources for mandates, see the contributions of Winkler and de Albuquerque and Connors to this collection. 3 World Conference on Human Rights, ‘Vienna Declaration and Programme of Action’ (25 June 1993) un Doc A/CONF.157/23, Part ii para 95.

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At  their 2005 annual meeting, mandate holders established a Coordination Committee whose main functions are to ‘seek to assist coordination among mandate holders, to act as a bridge between them and the Office of the High Commissioner for Human Rights, the broader un human rights framework, and civil society and to promote the standing of the sp system within the broader framework of the United Nations and its human rights programme’.4 The Coordination Committee is not a policy-making body, its role is essentially facilitative and its interventions are of a recommendatory nature. The Coordination Committee consists of six members, including the Chairperson and the Rapporteur, who are elected during the annual meeting of Special Procedures. Membership takes into account the need to ensure to the greatest extent possible regional and gender balance, as well as equal representation of thematic and country Special Procedures. The outgoing Chair of the Coordination Committee becomes an ex officio member of the Committee. Each year, the Coordination Committee’s membership is renewed during the annual meeting.5 The Coordination Committee establishes the agenda of the annual meeting and presents its report during the annual meeting of Special Procedures mandate holders. The mandate of the Coordination Committee has evolved since its creation, especially in respect to developments at the Human Rights Council and increasing dialogue and cooperation between mandate holders. However, there are still challenges for the Committee to overcome in order to play a stronger coordinating role. iii

Supporting and Assisting Mandate Holders: The Role of the Coordination Committee

The Coordination Committee works as a tool facilitating and coordinating mandate holders’ work and improving their working methods. Synergies between mandate holders have increased for a range of reasons, including an improved exchange of information and the keeping of mandate holders informed of activities carried out by other mandate holders. Such activities include country 4 un Commission on Human Rights ‘Report of the Twelfth Meeting of Special Rapporteurs/ Representatives, Independent Experts and Chairs of Working Groups of the Special Procedures of the Commission on Human Rights and of the Advisory Services Programme’ (3 August 2005) un Doc E/CN.4/2006/4. 5 Office of the un High Commissioner for Human Rights (ohchr) ‘Coordination Committee of Special Procedures’ accessed 9 February 2016.

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visits, expert meetings, statements, press releases, and reports. Information tools have also been key to increased synergies, including the Extranet, newsletters, country visits planning, list of thematic reports, and the list of standing invitations. The Coordination Committee identifies, in a proactive manner, issues that are of concern to several mandates and facilitates joint actions on these crosscutting issues. Joint actions include open letters, such as the Open Letter of Special Procedures mandate holders on the High Level Dialogue on International Migration and Development;6 press releases, like the Press release of Special Procedures mandate holders on the situation in the Occupied Palestinian Territory and Israel;7 and statements, such as the Statement by Chaloka Beyani, Chairperson of the Coordination Committee of Special Procedures, to the Urgent Debate of the Human Rights Council on the deteriorating situation of human rights in Syria,8 and to the Twentieth Special Session of the Human Rights Council on the situation of human rights in the Central African Republic.9 The Coordination Committee contributes to improvements in Special Procedures’ working methods, through enabling the sharing of experience and practices concerning methods of work. In particular, it contributes to country visits follow-up and outreach to partners at the country level; the protection of victims, witnesses and sources; and human rights fact-finding missions. Frequently this work leads to the creation of internal documents and guidelines. 6 ohchr ‘Open Letter of Special Procedures Mandate Holders on the High Level Dialogue on International Migration and Development – an Open Letter from the United Nations Special Procedures Mandate Holders on the High-level Dialogue on migration and development’ (ohchr, 2 October 2013) accessed 9 February 2016. 7 ohchr ‘Press Release of Special Procedures Mandate Holders on the Situation in the Occupied Palestinian Territory and Israel’ (ohchr, 23 November 2012) accessed 9 February 2016. 8 ohchr ‘Statement of Chaloka Beyani, Chairperson of the Coordination Committee of ­Special Procedures, during the Urgent Debate of the Human Rights Council on the Deteriorating Situation of Human Rights in the Syrian Arab Republic’ (ohchr, 29 May 2013) accessed 9 February 2016. 9 ohchr ‘Statement by Chaloka Beyani, Chairperson of the Coordination Committee of Special Procedures to the Twentieth Special Session of the Human Rights Council on the Situation of Human Rights in the Central African Republic’ (ohchr, 20 January 2014) accessed 9 February 2016.

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The Manual of Operations of the Special Procedures of the Human Rights Council,10 which provides guidelines on their working methods, has been revised to reflect the new developments in relation to mandates, and the evolving working methods of the mandate holders. It was adopted by the Special Procedures in June 2008 at the 15th Annual Meeting of Special Procedures. In addition, a Question and Answer guide has recently been elaborated and adopted by the Special Procedures. This guide is an internal working document that provides, in a comprehensive manner, practical information to assist mandate holders in undertaking their duties. It guides them, inter alia, in developing a constructive dialogue with States and other stakeholders and in overcoming obstacles or challenges during the mandate. Furthermore, one of the significant achievements of the Coordination Committee has been to push for the creation of a joint communications report which has been published three times a year at each session of the Council.11 The report serves as a basis for planning and monitoring initiatives to followup on communications, which should thus feed into the Universal Periodic Review more effectively. This report is a ground-breaking tool, which has also given increased visibility to the communications procedure and to certain human rights violations in countries. The induction session for new mandate holders has been progressively improved, including innovative tools such as role-playing and dedicating more time for exchanges with former mandate holders. The Special Procedures Annual Meeting agenda has also been improved throughout the years, resulting in more time being provided for sharing mandate holders’ practices and concerns and discussion with different stakeholders including un mechanisms, the Office of the un High Commissioner for Human Rights, the un Human Rights Council, States, and nongovernmental organisations (ngo). iv

Cooperation with States and Other Stakeholders

Despite the significant progress made in the working methods of Special Procedures, there is still a need for improvement. One example is that an annual 10

11

ohchr ‘Manual of Operations of the Special Procedures of the Human Rights Council’ (ohchr, August 2008) accessed 9 February 2016. un Human Rights Council (unhrc) ‘Report on the Fifteenth Meeting of Special Rapporteurs/Representatives, Independent Experts and Chairpersons of Working Groups of the Special Procedures of the Human Rights Council’ (17 November 2008) un Doc A/ HRC/10/24, paras 34–35.

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report documenting good practices and lessons learnt could be published on an annual basis. The coordination amongst mandate holders, including the planning of country visits, also needs to be developed in order to avoid a large number of visit requests or consecutive visits to the same country.12 To facilitate better cooperation between States and Special Procedures, the Coordination Committee holds meetings during and outside the Council sessions, with the Council President, States and regional groups. In its discussions with the Council’s President, the Coordination Committee raises the concerns of Special Procedures, for example regarding country visits, allegations of breaches of the Code of Conduct, and reprisals against human rights defenders. In that way the Coordination Committee ensures that mandate holders’ concerns are taken into account, and that there are reports on the developments and progress in this regard. In 2015, for the first time, the Chair of the Coordination Committee was invited to present the Special Procedures report at the Council’s 28th Session.13 This new step marked significant progress in the recognition and visibility of Special Procedures’ work. It is also important to highlight the establishment by Special Procedures of self-regulation of the sp system by means of the Internal Advisory Procedure to Review Practices and Working Methods. The final version of that Internal Advisory Procedure was adopted by Special Procedures at their 15th Annual Meeting in June 2008.14 The Procedure opens the door to the use of the Coordination Committee as a ‘good offices’ mechanism to help arrive at solutions guided by the interest of preserving the integrity, independence and impartiality of Special Procedures. These actions allowed for better cooperation with States, in particular a decrease in allegations of breaches of the Code of Conduct. Furthermore, to ensure cross-fertilisation between the work of Special Procedures and other stakeholders (including Treaty Bodies, national and regional human rights institutions, un agencies, Office of the High Commissioner for Human Rights, ngo and academics), the Coordination Committee holds 12 13

14

For more on sp coordination of visits, see the contributions of Gaer and Evans to this volume. unhrc ‘Report on theTwenty-First Annual Meeting of Special Rapporteurs/Representatives, Independent Experts and Working Groups of the Special Procedures of the Human Rights Council, Including Updated Information on the Special Procedures’ (29 January 2015) un Doc A/HRC/28/41. ohchr ‘Internal Advisory Procedure to Review Practices and Working Methods’ accessed 9 February 2016.

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meetings to discuss issues of common concern and to explore opportunities for enhanced cooperation and joint initiatives, such as the Addis Ababa Roadmap between the Special Procedures and the African Commission on Human and Peoples’ Rights.15 Bi-annual workshops of regional human rights mechanisms and un human rights mechanisms are held in order to share experi­ences and best practices, and to enhance cooperation between those mechanisms. Despite all of these initiatives, there is still a need to strengthen outreach with States. In particular, issues that need to be raised include responses to country visit requests and standing invitations. There is also a need to encourage States to use the International Advisory Procedure for bringing complaints or concerns about mandate holders’ conduct to the attention of the Coordination Committee. Cooperation with other stakeholders also needs to be strengthened through enhancing standing partnerships and ensuring a close follow-up of the planned joined actions. v

Strengthening the sp System

The Coordination Committee played and still plays an active role in strengthening the Special Procedures system. It participated significantly in the process of the Review, Rationalization and Improvement of mandates undertaken by the Human Rights Council in 2007–0816 and in the review process in 2010–11,17 providing concrete recommendations aimed at strengthening the system’s effectiveness and independence, ensuring better cooperation and dialogue with States, and increasing resource. For example, to improve the selection and appointment procedure for mandate holders, the Coordination Committee provided input on the technical criteria for placing candidates on the public list and submitted comments to the Consultative Group to help it determine the necessary expertise, experience and skills for the mandates under consideration. 15

16

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ohchr ‘Dialogue Between Special Procedure Mandate Holders of the un Human Rights Council and the African Commission on Human and Peoples’ Rights – Road Map’ (ohchr, 17–18 January 2012) accessed 9 February 2016. ohchr ‘Review, Rationalization and Improvement Mandates’ accessed 9 February 2016. unhrc ‘Review of the work and functioning of the Human Rights Council’ (12 April 2011) un Doc A/HRC/RES/16/21.

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In 2011, during the annual Special Procedures meeting, the mandate holders decided to disclose to other mandate holders the outside support available to each mandate. This was part of an internal process to enhance transparency of funding or to address any other issues that could undermine their independence and impartiality. Under the Coordination Committee’s supervision, a template has been prepared as a form to be filled in for disclosure purposes on an annual basis so that the information can be shared at the annual meeting of mandate holders. The Coordination Committee is represented at and delivers joint statements to Special Sessions of the Council about countries in conflict (such as Sri Lanka18 and Libya19), and at High-Level Dialogues and Panels of the Human Rights Council (including on human rights mainstreaming20). All of these actions allow more visibility and more space of participation to the Special Procedures system as a part of the un human rights system. They also demonstrate that the technical expertise and experience gained through the first-hand information gathered, for example during country visits, are key elements of the human rights machinery. vi

The Challenges Ahead

The Coordination Committee has taken important actions in relation to a considerable amount of issues, allowing increased synergies between Special Procedures, improved working methods, better interaction with States and other stakeholders, and higher visibility of the system. However, there are still remaining challenges for the Coordination Committee to overcome in order to play a stronger coordinating role.

18

19

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ohchr ‘11th Special Session of the Human Rights Council: “The Human Rights Situation in Sri Lanka”’ (26–27 May 2009) accessed 9 February 2016. ohchr ‘15th Special Session on the “Situation of Human Rights in the Libyan Arab Jamahiriya”’ (25 February 2011) accessed 9 February 2016. ohchr ‘Statement by the Chair of the Coordination Committee of Special Procedures, Mr Michel Forst, on behalf of all Special Procedures Mandate Holders at the High-Level Panel on Human Rights Mainstreaming at the Twenty-Second Session of the Human Rights Council’ (ohchr, 1 March 2013) accessed 9 February 2016.

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Some challenges are related to the Coordination Committee’s working methods, such as the difficulties of holding regular working meetings due to the ­availability of members – who have busy and different schedules – and the lack of resources to ensure more regular meetings of the Coordination Committee members. Managing the tasks of mandate holder and of being a Coordination Committee member is extremely time-consuming, particularly for the Chair. The quality of relationships between the Coordination Committee Chair and the members also has an impact on the Coordination Committee’s work. If the Coordination Committee’s members do not carry out their role properly it creates problems for its smooth functioning – and for the Special Procedures system more generally. Furthermore, joint actions depend strongly on the involvement and the prompt feedback of all mandate holders, which has not always occurred. Regarding cooperation between mandate holders, it is still difficult to ensure better synergy in planning country visits, owing to the non-response or long delay of some States’ feedback and also of the insufficiency of coordination among mandate holders with regard to planning country visits. Special Procedures still face difficulties in carrying out their tasks effectively, including with regard to accessing reliable and accurate information, fact-finding, investigating and cross-checking information, as well as conducting country visits, protecting victims and witnesses, and ensuring follow-up to and monitoring of their recommendations. These issues have been raised on repeated occasions by the Coordination Committee but no significant progress has been made in this regard to date. The practice of not honouring standing invitations is still persistent,21 as well as attacks on mandate holders22 and reprisals on those who cooperate with Special Procedures.23 Unfortunately, some States tend to attack mandate holders directly in the Human Rights Council rather than resorting to the Internal Advisory Procedure. In recent years, the Coordination Committee has had to deal with increasing expectations and concerns due to the ­increasing number of sp and the lack of human and financial resources dedicated to Special Procedures. Several new mandates are created every year by the ­Human Rights Council, but not always accompanied by the adequate financial ­resources to ensure its efficient functioning. 21 22 23

For more on state responses to visit requests, see Gaer’s contribution to this collection. For more on state responses to mandate holders’ visits, see the contributions of Gaer, Shaheed and Parris Richter, and Freedman and Crépeau to this collection. For more on reprisals, see Lynch’s contribution to this collection.

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The Way Forward

The Coordination Committee has evolved since its creation, playing an active role in strengthening the effectiveness and the independence of the Special Procedures system as a part of the un human rights system, but it still faces remaining challenges. In order to ensure a stronger coordinating role, the following measures will be required: (i) improving the Coordination Committee’s working methods through clearly defining membership criteria, elaborating an annual plan of actions to be adopted by the Special Procedures and reporting on its implementation; (ii) lobbying for the allocation of sufficient resources to the increasing number of Special Procedures; and (iii) advocating for a new status for the Coordination Committee. In the challenging current context marked by an increasing number of Special Procedures interacting with a wide range of stakeholders and a decrease in resources, these measures should allow for a stronger Coordination Committee to provide effective and sustainable support and guidance to Special Procedures. That, in turn, will strengthen the effectiveness and the independence of the sp system. It should also ensure cross-fertilisation and a better mainstreaming between and among human rights mechanisms.

chapter 5

Strengthening Cooperation: The Key to Unlocking the Potential of the Special Procedures Marc Limon Abstract How to strengthen cooperation between Special Procedures and the un membership has been a constant source of debate and negotiation since the establishment of the first mandate in 1967. Over the intervening years, many ideas have been generated. Unfortunately they have rarely been acted upon or implemented. Building on the author’s experience as a diplomat and as head of a human rights think tank, this short chapter looks at the current situation of state cooperation with Special Procedures. In so doing, it identifies where the key problems lie, analyses reform efforts of the past 50 years, and describes contemporary steps being taken at the Human Rights Council to strengthen cooperation in line with that body’s founding documents.

Keywords Human Rights Council – States – mandate holders – cooperation – reforms – strengthening the system

i

Introduction

Mandate holders’ ability to secure cooperation and the related willingness of a State to work with Special Procedures are among the most important structural determinants of the mechanism’s influence and impact.1 The tools that mandate holders have – such as undertaking missions, engaging in

1 M Limon and T Piccone, ‘Human Rights Special Procedures: Determinants of Influence. Understanding and Strengthening the Effectiveness of the un’s Independent Human Rights Experts’ (Universal Rights Group, March 2014) accessed 9 February 2016.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004304703_007

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interactive dialogues with States, and communicating with governments about allegations – can only effectively be leveraged if States and mandate holders cooperate with one another. Mandate holders cannot force States to give them access or to implement their recommendations; rather they have to rely on persuasion or on mobilising international pressure. Given the nature of Special Procedures, it is unsurprising that, throughout the system’s history, the need for cooperative relationships with States has remained constant. ii

From Promotion to Protection

As has been widely noted, ‘the Charter nowhere explicitly provides authorisation for the political organs of the United Nations to assume monitoring competences in the field of human rights’.2 Rather, the Charter sets out that the un would seek to ‘achieve international cooperation… in promoting and encouraging respect for human rights’.3 It took almost 20 years after the Charter’s adoption for the un to move towards a more robust and protection-focussed approach to human rights, and the development of Special Procedures was a fundamental component of that change. The system’s creation4 directly contravened the idea of non-interference in domestic affairs, as set out in article 2.7 of the un Charter. Buergenthal insists that by taking this step the un began ‘to pierce the veil of national sovereignty’ in order to respond to serious cases of human rights violations.5 Over the following decades, Special Procedures continued to assist with the movement from promotion to protection of human rights. That movement relied on individual mandate holders taking steps unprecedented in terms of interfering in States’ affairs. Abdoulaye Dieye, Special Rapporteur on human rights in Chile, paved the way for mandate holders directly to consider

2 J Gutter, Thematic Procedures of the United Nations Commission on Human Rights and International Law: In Search of a Sense of Community (Intersentia 2006) 76. 3 Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 unts xvi, art 1.3. 4 For more on the creation of the Special Procedures system, see Domínguez-Redondo’s contribution to this collection. 5 T Buergenthal, ‘Remarks at the 87th Annual Meeting of the American Society of International Law’ (2 April 1993) in ‘New Customary Law: Taking Human Rights Seriously?’ (1993) 87 asil Proceedings 229, 231 quoted in SP Subedi, ‘Protection of Human Rights through the Mechanism of un Special Rapporteurs’ (2011) 33 Human Rights Quarterly 202.

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petitions from victims, as opposed to all communications being handled through the confidential 1503 procedure. When States resisted that move, Dieye pointed to the un authorising him to determine the best methods for investigating possible violations, and set an important precedent for mandate holders developing their own working methods. The Working Group on Enforced Disappearances took this further, establishing a communications procedure for petitions. Further innovations were introduced by Amos Wako, the first Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions, addressing country-­specific situations in his annual reports; and by Peter Kooij­mans, the first Special Rapporteur on torture, who developed the Urgent Appeals mechanism. Many States pushed back against these working methods but each innovation added to the tools available to clarify norms and to hold States accountable. Yet all of those tools remained heavily dependent on cooperation. For example, mandate holders can receive individual petitions and send communications but cannot force States to respond or sanction those that fail to do so. Similarly, although mandate holders have increasingly sophisticated methodologies for conducting fact-finding missions, they cannot force States to let them into their territories. iii

Push-back

Many States remained nervous about mandate holders’ growing autonomy, despite the cooperation-related constraints placed on Special Procedures, and as a result have pushed-back against the system. Three systemic and comprehensive reviews and reforms of Special Procedures were undertaken during which States sought to exercise some control over the system and over mandate holders’ ability to pierce further holes in ‘the veil of national sovereignty’ covering their domestic human rights affairs. In particular, States were keen to ensure that Special Procedures work in a spirit of cooperation and dialogue with States, as opposed to in a spirit of confrontation or accusation. While some States sought to control how Special Procedures operate, others used the reform exercises to emphasise that the responsibility to cooperate also falls upon governments. The three main reform exercises took place: (i) between 1998 and 2000 (by the Commission on Human Rights); (ii) between 2002 and 2004 (in the context of broader un reforms); and (iii) in 2006 and 2011 (during the Council’s creation and its five-year review). Throughout all of those processes, the importance of cooperation between States and mandate holders, and finding ways to strengthen it, was a recurring theme.

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In 1998, the Commission conducted a review of its mechanisms with a view to ‘enhancing the[ir] effectiveness’.6 The Commission’s Bureau presented a report, which noted that while ‘the Special Procedures had been one of the Commission’s major achievements’, there was nonetheless ‘scope for rationalizing and strengthening the existing network’.7 The Bureau’s report provided important concrete proposals to strengthen cooperation, including that the Chair of the Commission be given a greater role in securing government responses to Urgent Appeals; that every Commission session should include ‘regular, focussed and systematic deliberations’ on serious incidences of noncooperation by governments; and that the Commission should hold a regular dialogue following-up on States’ implementation of Special Procedures recommendations. The Bureau’s report, together with submissions from other stakeholders,8 was considered by an inter-sessional open-ended ‘Working Group on Enhancing the Effectiveness of the Mechanisms of the Commission on Human Rights’, comprised of all States.9 The Working Group’s final report significantly watered down the Bureau’s proposals.10 Instead of a greater role for the Chair of the Commission, the Working Group made a vague call for the High Commissioner to ‘assist in seeking to promote the establishment of fruitful dialogue and cooperation between the Government and the special procedure concerned’.11 Instead of deliberations on serious incidences of government non-cooperation,12 the Working Group insisted that ‘refusal of cooperation occurs only in a minority of cases’ and recommended merely that ‘steps to encourage a more cooperative response should be carefully considered by the Commission’.13 Finally, instead of a regular dialogue on implementation

6

un Commission on Human Rights (unchr) ‘Enhancing the Effectiveness of the Mechanisms of the Commission on Human Rights’ (24 April 1998) un Doc 1998/112. 7 Ibid Executive Summary and Recommendation 1, para 20. 8 unchr ‘Report of the un High Commissioner for Human rights and Follow-up to the World Conference on Human Rights: Effective Functioning of Human Rights Mechanisms’ (6 August 1999) un Doc E/CN.4/2000/5. 9 unchr ‘Report of the Inter-Sessional Open-Ended Working Group on Enhancing the Effectiveness of the Mechanisms of the Commission on Human Rights’ (16 February 2000) un Doc E/CN.4/2000/112. 10 Ibid. 11 Ibid para 28. 12 unchr ‘Report of the Bureau of the 54th Session of the Commission on Human Rights Submitted Pursuant to Commission Decision 1998/112’ (23 December 1998) un Doc E/ CN.4/1999/104, recommendation 7. 13 ‘Report of the Inter-Sessional Open-Ended Working Group’ (n 9) para 25.

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and follow-up,14 the Working Group placed the onus for improving ‘the quality of dialogue’ on Special Procedures, claiming that mandate holders were often late in making their reports available to States ahead of meetings and that they should take more care in ‘structuring their executive summaries’.15 The second review and reform process began with the publication of the then un Secretary-General Kofi Annan’s 2002 report Strengthening of the United Nations: an agenda for further change,16 which paid particular attention to human rights including key mechanisms such as Special Procedures.17 The General Assembly then adopted Resolution 57/300, which requested, inter alia, ‘the Commission on Human Rights and the relevant intergovernmental bodies to review the human rights Special Procedures in order to rationalize their work and enhance their effectiveness’.18 The reform exercise soon became swallowed up in the broader reform of the un human rights system – a process that would eventually lead to the establishment of the Human Rights Council. Notwithstanding, the reform exercise was significant insofar as its outputs revealed an emerging consensus regarding key issues and challenges facing the Special Procedures system, including (i) protecting the independence of Special Procedures while ‘establishing better guidelines for their operations’19 (that is, distinguishing between their substantive independence and the need for them to conform with certain common standards of procedure and conduct) and (ii) securing better cooperation and responsiveness from governments. Those points were encapsulated in Resolution 2004/76 on ‘Human Rights and Special Procedures’ adopted by the Commission. That Resolution provided clear requests to governments, mandate holders, civil society, the High Commissioner and the Secretary-General, designed to strengthen the mechanism’s effectiveness. The third opportunity to reform Special Procedures occurred in the context of the establishment of the Human Rights Council20 in 2006 and at its five-year review in 2011. The issue of cooperation again featured prominently. In October 2005, the Office of the un High Commissioner for Human Rights (ohchr) 14

‘Report of the Bureau of the 54th Session of the Commission on Human Rights’ (n 12) recommendation 10. 15 ‘Report of the Inter-Sessional Open-Ended Working Group’ (n 9) paras 30 and 32. 16 unga ‘Report of the Secretary-General 57/387 Strengthening of the United Nations: an agenda for further change’ (2002) un Doc A/57/387, 13. 17 Ibid. 18 unga Res 57/300 ’Strengthening of the United Nations: an agenda for further change’ (7 February 2003) un Doc A/RES/57/300, para 9. 19 unga (n 16), para 56. 20 The Human Rights Council replaced the Commission on Human Rights.

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organised an open-ended seminar on enhancing and strengthening Special Procedures’ effectiveness, which while not convened as part of the Council’s institution-building process nevertheless took place against a backdrop of international moves to establish the new body. The meeting reaffirmed coalescing opinions around key challenges for Special Procedures, including the interlinked issues of independence, accountability, cooperation and follow-up. Ideas put forward during the meeting included: (i) drafting a new ‘Code of Conduct’ for mandate holders to ensure that they would act in a cooperative manner; (ii) the Coordination Committee acting as a self-regulatory mechanism to deal with complaints by States against mandate holders; (iii) ohchr publishing an annual ‘cooperation’ report containing statistics reflecting responses to visit and communications requests for visits and communications; (iv) the Secretary-General or High Commissioner intervening in cases of sustained non-cooperation; (v) the Council monitoring follow-up; and (vi) ohchr producing a report on the implementation of Special Procedures recommendations.21 Many of these themes and ideas were repeated during negotiations on the Council’s institution-building package (ibp) in 2006. Interventions again centred on independence and cooperation. Generally, two distinct sides emerged. The first was led by Western European and Others Group (weog) and some Latin American States and emphasised the importance of maintaining Special Procedures’ independence. Those States asserted that the main issue was lack of cooperation by States. The other side was led by the African Group, the Organisation of the Islamic Conference and the Non-Aligned Movement, all of whom emphasised the need for greater supervision and accountability of mandate holders, while remaining largely silent on the question of state cooperation. Owing to those divisions, the final ibp merely set out that cooperation must be guided by ‘the principles of objectivity, non-selectivity’, and that ‘double standards and politicisation’ should be eliminated.22 The ibp was, however, wholly silent on the issue of implementation and follow-up of recommendations. 21

22

Which led to the Report of the open-ended seminar on enhancing and strengthening the effectiveness of the Special Procedures of the Commission on Human Rights (Geneva, 12–13 October 2005): unchr ‘Note by the United Nations High Commissioner for Human Rights: Rationalization of the work of the Commission: Enhancing and Strengthening the Effectiveness of the Special Procedures of the Commission on Human Rights (report of the open-ended seminar on this subject convened pursuant to Commission on Human Rights decision 2005/113)’ (12 December 2005) un Doc E/CN.4/2006/116. unhrc Res 5/1 ‘Institution-building of the United Nations Human Rights Council’ (18 June 2007) un Doc A/HRC/RES/5/1, paras 54 and 64.

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General Assembly Resolution 60/251 establishing the Council stipulated that the new body should ‘review its work and functioning five years after its establishment’.23 In principle this offered another opportunity for States to consider the challenges facing Special Procedures and to identify ways to strengthen cooperation. However, in reality the 2011 review achieved nothing more than further crystallisation of the division between States’ competing visions of the system, its role and purposes.24 Of the 437 state proposals put forward on the question of Special Procedure reform, 154 (35 per cent) presented (conflicting) views on the question of independence and accountability, 75 (17 per cent) focussed on what to do (or not to do) about state non-cooperation, and 20 (5 per cent) addressed implementation and follow-up. iv

Cooperation: Key to Unlocking the Potential of Special Procedures

The Council has urged ‘all States to cooperate with, and assist, the Special Procedures in the performance of their tasks’,25 but there is no legal obligation for States to do so and no legal sanction available when they do not. Securing, cultivating and working within a cooperative relationship with States is therefore key, and crucially this must work both ways. For mandate holders this means, where possible, establishing a strong relationship with state representatives and developing a high degree of mutual trust and confidence. Even at its most basic level mandate holders should implement their mandate upon the assumption that States are partners not adversaries, and should establish and maintain a cooperative and constructive dialogue on that basis. Such partnerships must be sustainable and longterm. According to many state delegates, mandate holders too often fall prey to ‘short-termism’ – visiting a country but thereafter merely filing a report and ‘moving onto the next State’. For States, the responsibility to cooperate with Special Procedures is equally clear and is repeated in Resolutions 5/2 and 16/21, which urge States to respond 23 24

25

unga Res 60/251 ‘Human Rights Council’ (3 April 2006) un Doc A/RES/60/251, para 16. With the exception of further refinements to the appointment process, candidates must now submit a motivational letter as part of the nomination process. The ohchr will maintain separate lists for each public candidacy and if the President of the Human Rights Council decides to deviate from the recommendation of the consultative group in the appointment process, he or she must justify this decision: unhrc Res 16/21 ‘Review of the work and functioning of the Human Rights Council’ (12 April 2011) un Doc A/HRC/ RES/16/21, Annex: Part ii, paras 22 and 28. unhrc Res 5/2 ‘Code of Conduct for Special Procedures Mandate-holders of the Human Rights Council’ (18 June 2007) un Doc A/RES/HRC/5/2, para 1.

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in a timely manner to requests for information and visits. When States take seriously that responsibility the system can have a powerful influence upon domestic human rights. Problems arise, of course, when States fail to engage with mandate holders in the manner required. That problem has long been recognised but attempts to find workable solutions have been, at best, halfhearted. For example, the 1998–2000 reforms noted that lack of cooperation ‘must be a cause of serious concern’ and that ‘in such cases, steps to encourage a more cooperative response are critically important and should be carefully considered’.26 The vagueness of that suggestion demonstrates the key challenge that faces Special Procedures: how can a mechanism without enforcement powers compel a government to cooperate? The answer, of course, is that it cannot, but there are steps that can be taken to strongly encourage States to cooperate. At the heart of those steps are the principles of transparency and public accountability, because the best way to strengthen state cooperation with Special Procedures is to shine a clear spotlight on those States that fail to cooperate. Since the first systemic reforms in 1998, there have been many useful proposals designed to expose States the do not cooperate with Special Procedures, but none have been implemented fully. Proposals have generally focussed on identifying criteria to measure cooperation and then assessing a State’s compliance with those criteria. Suggested criteria include: (i) whether a State has extended a Standing Invitation for country visits; (ii) whether a State responds to visit requests in a timely and favourable manner; and (iii) whether a State responds to requests for information from Special Procedures. The challenge is how to leverage this information. Some weog and Latin American States have suggested that the level of a country’s cooperation – as measured against the above criteria – be used as a condition for Council membership. However, that would be unworkable as all States have an equal right to stand for election.27 Another proposal, made in 2011, was to establish a ‘Code of Conduct’ for state cooperation, although this was mainly a diplomatic manoeuvre to counter African Group calls for an ‘Ethics Committee’ to police mandate holder behaviour, rather than a serious proposal in its own right. Another more practical proposal has been made during almost every reform process since 1999 and is based on two steps. The first step is to ‘compile and make available objective information on the cooperation … between States

26 27

‘Report of the Inter-Sessional Open-Ended Working Group’ (n 9) para 25. ‘Membership in the Council shall be open to all States Members of the United Nations’: unga Res 60/251 (n 23) para 8.

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and un human rights mechanisms’,28 which could be achieved for example, through a document on ‘cooperation’ compiled by ohchr,29 the inclusion of a ‘cooperation’ section in the High Commissioner’s annual report,30 or through an easily searchable online database.31 The goal would be to provide a robust, objective and accessible analysis of States’ levels of cooperation. The second step is to use Council sessions, specifically under Agenda Item 5,32 as a ‘forum for open, constructive and transparent discussion on cooperation between States and Special Procedures’.33 v

Cooperation Today

Until the Council’s 28th Session in March 2015, these proposals remained largely unimplemented (with a few exceptions such as ohchr’s regular reports on States’ responsiveness to communications).34 The result was that overall state cooperation with Special Procedures remained poor and inconsistent (that is, it varied widely between States and regions). This had particularly negative consequences for the ability of mandate holders to promote and protect human rights through undertaking country missions and acting on individual complaints. An analysis of Special Procedures missions undertaken by the Universal Rights Group and Brookings Institution,35 which looked at disparities between regions in relation to visit requests and visits completed, demonstrates how cooperation, or lack thereof, undermines the ability of Special Procedures to 28

29 30 31 32

33

34 35

Proposal of Argentina and Chile, in unhrc ‘Report of the Open-Ended Intergovernmental Working Group on the Review of the Work and Functioning of the Human Rights Council’ (4 May 2011) un Doc A/HRC/WG.8/2/1, 77. Ibid 77. Proposal of us, ibid 78. There were many proposals for such a database during the 2011 review, including from Switzerland and the us: ibid 75 and 78. Agenda item 5: ‘Human rights bodies and mechanisms’, as set out in unhrc Res 5/1 (n 22). Also available at accessed 26 June 2016. unhrc Resolution 16/21 (n 24) para 27. See also ‘Report of the Open-Ended Intergovernmental Working Group’ (n 28) 75 and 131 regarding calls from Poland and the uk to this effect. ohchr Communication Reports can be found at accessed 9 February 2016. Limon and Piccone (n 1).

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promote and protect human rights around the world.36 The research shows that whereas 93 per cent of weog States had extended a Standing Invitation to Special Procedures, only 43 per cent and 31 per cent of Asian and African States (respectively) had done so. Similarly, looking at the ratio of requestedto-completed visits, weog States had facilitated roughly three quarters of requested country missions, whereas for both Asia-Pacific and Africa, over half of visit requests remained outstanding. Such disparities have led many diplomats to complain that the Special Procedures mechanism is becoming too burdensome for countries that cooperate with the un mechanisms (and which receive large numbers of Special Procedures missions), but achieves very little in the context of countries that choose not to cooperate. The diplomats note the irony of Special Procedures being refused entry into countries where their work is most needed (that is, countries with poor human rights records).37 Universal Rights Group and Brookings also analysed state response rates to communications (individual complaints) and found significant variations in cooperation between regions and between different mandates.38 Again, weog and Latin American States tend to have high response rates vis-à-vis Special Procedures communications. Rates also vary between countries. For example, in the Asia-Pacific Region Bangladesh has responded to around 90 per cent of communications while its neighbour, the Maldives, has responded to less than 20 per cent. Moreover, these response rates can mask significant differences in the quality of state responses, for example countries such as Russia that have high communication response rates (82 per cent) often reply only to reject the accusations made without substantive justification (38 per cent). Differential response rates are also evident across different mandates, with some, such as on freedom of religion, human rights defenders, freedom of expression, and torture, being able to secure responses to over half of all communications sent to governments, whereas others, such as on migrants, education, and slavery, secure response rates of roughly 20–30 per cent. Notwithstanding these challenges, there have recently been some indications that the un is beginning to ‘grasp the nettle’ of state cooperation. At the 28th Session of the Council, some States representing an informal ‘group of friends of Special Procedures’, along with the Coordination Committee, ohchr and civil society actors, came together to secure progress for improved cooperation. Firstly, Special Procedures submitted a detailed annual report to the Council, which included information on state cooperation, implementation 36 37 38

Ibid 23–24. Saudi Arabia, for example, has only facilitated 2 out of 15 visit requests since 1998. Limon and Piccone (n 1) 27–29.

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and follow-up activities.39 On the issue of state responsiveness to Special Procedures’ communications, the report noted that States had responded to only 42.7 per cent of all communications in 2014, and that there was considerable variation in terms of substance, with some merely offering an ‘acknowledgement of receipt’ and others providing ‘more substantive replies’. The report also includes cooperation indicators covering standing invitations (Annex iii), visits undertaken (Annex ii) and a list of countries that have never received a visit (Annex iv). The report seeks to promote good practice in follow-up/ implementation, by providing a ‘non-exhaustive list of follow-up activities undertaken by mandate holders’ (Annex ix). Furthermore, for the first time the Chairperson of the Special Procedures Coordination Committee was allowed to present the report to the Council under Agenda Item 5. In his statement, the Chair set out the decision ‘to include more facts and figures in [its] report and give more precise information on the Special Procedures system and its impact’.40 He insisted that the report would contribute to the future effectiveness of the mechanism, including by promoting better cooperation from States and ‘ensuring appropriate follow-up to recommendations’. Responding to those steps, a cross-regional group of 44 States41 delivered a statement welcoming the ‘additional information contained in the report’, and the increased interaction between the Council and Special Procedures.42 vi

Conclusion

The effectiveness of the Special Procedures, like other un human rights mechanisms, is heavily dependent on the willingness of States to cooperate with 39

40

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unhrc ‘Report on the Twenty-First Annual Meeting of Special Rapporteurs/ Representatives, Independent Experts and Working Groups of the Special Procedures of the Human Rights Council, Including Updated Information on the Special Procedures’ (29 January 2015) un Doc A/HRC/28/41. François Crépeau, ‘Statement by the Chairperson of the Coordination Committee of Special Procedures’, 18 March 2015, available at accessed 8 August 2016. Algeria, Andorra, Argentina, Australia, Austria, Belgium, Botswana, Bulgaria, Chile, Colombia, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, El Salvador, Estonia, Finland, France, Germany, Greece, Honduras, Hungary, Iceland, Ireland, Italy, Japan, Lat­ via, Lithuania, Luxemburg, Mexico, Moldova, Netherlands, New Zealand, Norway, Paraguay, Peru, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Tunisia, United Kingdom, and Uruguay. A copy of the oral statement is available at accessed 8 August 2016.

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them in a meaningful way. The un has repeatedly made clear that States have a responsibility to cooperate with Special Procedures. However, throughout the history of the un human rights system there have always been great variations in levels of cooperation. This has led to a paradoxical situation in which the mechanism focusses disproportionately on those States (generally-speaking States with good human rights records) that are willing to cooperate, and yet is unable to have a significant impact on the human rights situations in countries (generally-speaking, those with poor human rights records) that refuse to cooperate. The un has long recognised this paradox and the problems it creates, and has come forward with proposed reforms to strengthen cooperation. However, until recently, those reforms have gone unimplemented. Yet, as the Human Rights Council enters its second decade, there are signs that ohchr, the Special Procedures themselves, and supportive States are taking small but important steps to leverage information on cooperation as a means of increasing international pressure on those States that continue to prefer to avoid independent Special Procedures’ scrutiny of their internal human rights performance.

part 2 Exploring Opportunities and Challenges through Mandate Holders’ Work

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chapter 6

Coping Mechanisms for State Non-cooperation Ahmed Shaheed and Rose Parris Richter Abstract Non-cooperation, especially the refusal of country access, can prevent Special Procedure mandate holders with country-specific mandates from discharging their functions. A country visit generally enables a mandate holder to access alleged victims, make on-site inspections, clarify information, build partnerships, and establish channels of communication to monitor follow-up on recommendations for improvement in a country’s human rights situation. A visit also contributes to increasing the credibility of a mandate holder’s observations, thereby enhancing the legitimacy of subsequent reporting. Failure to elicit state cooperation is often used to demonstrate the irrelevance of a mandate and used as reason to discontinue the Special Procedure. Over time, however, country-specific mandate holders have developed a range of options to overcome non-cooperation and remain relevant and credible, leading to shifts in the stance of the country concerned or to an intensification of international scrutiny. These coping mechanisms include reliance on modern technology, utilising technical expertise, mobilising international support, and working with refugees, diaspora communities and civil society. This chapter examines the impact of these challenges and the use of such coping mechanisms with reference to Ahmed Shaheed’s work in relation to his mandate to promote greater respect for human rights in the Islamic Republic of Iran.

Keywords country-specific mandates – state cooperation – non-cooperation – the Islamic Republic of Iran – resources – coping mechanisms

i Introduction Five years after its establishment in 2006, the United Nations Human Rights Council (hrc) created its first country-specific Special Procedure.1 After much

1

1 E Wallace, ‘Human Rights Commission to Investigate Iran Abuses’ (GenevaLunch, 25 March 2011)  accessed 8 January 2016. © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004304703_008

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lobbying by Iranian civil society and international human rights organisations, 22 members of the 47-member body voted2 in March 2011 to establish a mechanism that would provide biannual reports to the United Nations on the situation of human rights in the Islamic Republic of Iran.3 In June of that year, Council President Sihasak Phuangketkeow appointed the former Foreign Minister of the Republic of Maldives, Ahmed Shaheed, as the Special Rapporteur for the mandate – apparently satisfying Iran’s criteria for a mandate holder.4 Proponents of the mechanism argued that a paucity of cooperation with various aspects of the international human rights mechanisms, amid widespread reports of systematic human rights violations emanating from the country, warranted serious concern and attention.5 And while some Iranian officials appeared ambivalent about engaging with the country-specific mandate in the weeks following its establishment,6 the Iranian Government categorically rejected the Council’s decision a few months later. Some officials asserted that the un resolution to establish the Special Procedure was selective and politicised, and declared that the Government of Iran would not cooperate with the mandate holder.7 The ability of Special Procedure mandate holders to secure States’ cooperation is among the most important structural determinants of the mechanism’s 2 3 4 5 6 7

2 Voting in favour: Argentina, Belgium, Brazil, Chile, France, Guatemala, Hungary, Japan, Maldives, Mexico, Norway, Poland, Republic of Korea, Republic of Moldova, Senegal, Slovakia, Spain, Switzerland, Ukraine, United Kingdom, United States of America, Zambia. Voting against: Bangladesh, China, Cuba, Ecuador, Mauritania, Pakistan, Russian Federation. Voting to Abstain: Bahrain, Burkina Faso, Cameroon, Djibouti, Gabon, Ghana, Jordan, Malaysia, Mauritius, Nigeria, Saudi Arabia, Thailand, Uganda, Uruguay. 3 See ‘Unfolding of Iran Resolution: What was Not Mentioned in the News’ (ichri, 24 March 2011) accessed 8 January 2016. 4 Although Iran called on members of the hrc to reject the resolution to establish the mandate, once the mandate was set up, Tehran apparently demanded that the appointed mandate holder meet certain criteria, namely, that the person be a man, a non-Arab and a Muslim. See O Memarian, ‘Why Did Iran Say No to Special Rapporteur?’ (The World Post, 5 July 2011)

accessed 16 November 2015. 5 The resolution that created the mandate itself noted the ‘regret’ of the hrc over ‘lack of cooperation’ from Iran. See unhrc Res 16/9 (8 April 2011) un Doc A/HRC/RES/16/9. 6 Memarian (n 4). 7 See ‘Iran Refuses to Cooperate with the un Special Rapporteur’ (ishr) accessed 16 November 2015.

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influence and impact. Indeed, some commentators conclude that nearly all the best practices and success stories of the Special Procedures are the result of cooperative relationships between mandate holders and governments. Ideally, this means establishing a synergistic, or even just an affable relationship with state representatives, characterised by mutual trust and confidence.8 An inability to achieve this can severely undermine the capacity of mandate holders to successfully give effect to their responsibilities. This includes the ability to gather information from credible sources and the capacity to engage with national stakeholders in order to examine the range of circumstances that can undermine the status of rights protections. The hrc recognised the importance of cooperation with its mechanisms and urged ‘all States to cooperate with, and assist, the Special Procedures in the performance of their tasks’.9 However, the extent to which Special Procedures succeed in securing cooperation continues to significantly vary from mandate to mandate. Special Procedures established under Item 10 of the hrc’s agenda, for example, often enjoy the cooperation of countries concerned.10 Special Procedures under this agenda item are considered to be advisory mechanisms that assist countries in improving the promotion and protection of human rights through the provision of technical assistance and capacity building resources.11 These mechanisms are generally established with the full consensus of Council members and with the consent of countries concerned. Like other human rights mechanisms, the ability of Item 10 mandates to facilitate their primary objective is wholly dependent on the cooperation of beneficiary States. And this necessity can, at times, engender the need for such mandate holders to remain silent on violations committed by government officials. Country-specific mandates that are established under Item 4 of the Council’s agenda,12 on the other hand, primarily seek to investigate and draw attention 8 9 10 11 12

8

9 10 11 12

M Limon and T Piccone, ‘Human Rights Special Procedures: Determinants of Influence. Understanding and Strengthening the Effectiveness of the un’s Independent ­Human Rights Experts’ (Universal Rights Group, March 2014) 16 accessed 9 February 2016. unhrc Res 5/2 (18 June 2007) un Doc A/HRC/RES/5/2. Countries benefitting from these mandates include the Central African Republic, Somalia, Sudan, Haiti and Cambodia. Technical assistance can include training and workshops in human rights education to overcome challenges in the areas of security and to promote respect for human rights. For the full list of hrc’s Agenda Items, see unhrc Res 5/1 (18 June 2007) un Doc A/HRC/ RES/5/1.

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to human rights abuses in specific countries, and are often established without the consent of the country they are meant to observe. They also rarely enjoy consensus support among Member States. Member State interventions during the early work of the hrc to review and improve the Special Procedures system largely focussed on their ‘future independence, scope and operational effectiveness’.13 Western States and several Latin American countries that had previously benefitted from the work of country-specific Special Procedures maintained the importance of the independence of Special Procedures and insisted that state cooperation with the mechanisms was pivotal to ensuring their effectiveness. On the other hand, a number of countries, including China, Russia and Cuba, opposed these Special Procedures, taking issue with the examination of country situations in the absence of country consent, and characterising them as politically motivated tools that violate the principle of state sovereignty and that only serve to ‘name and shame’ governments.14 These mandates are, therefore, viewed by these countries as punitive, coercive and intrusive mechanisms, rather than as constructive approaches to identifying solutions to pressing human rights concerns and to reporting on progress in addressing abuses.15 Thus, it should come as no surprise that these country-specific mechanisms struggle the most with securing state cooperation.16 13 14 15 16

13 14

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Limon and Piccone (n 8) 10. During the Review, Rationalization and Improvement process, as mandated by un General Assembly (unga) Res 60/251 (3 April 2006) un Doc A/RES/60/251, a number of countries, led by Egypt, called for the abolition of country mandates that were created without two-thirds majority of the hrc or the consent of the country concerned. Other proposals that they made on the strengthening of the Special Procedures system clearly expressed their concern about the politicisation of the system. See unhrc ‘Report of the OpenEnded Intergovernmental Working Group on the Review of the Work and Functioning of the Human Rights Council’ (4 May 2011) un Doc A/HRC/WG.8/2/1. To these arguments have been added the contention that the Universal Periodic Review makes country mandates obsolete: see P Schriefer, ‘The un Human Rights Council Report Card: 2009–2010’ (Freedom House, 15 September 2010) 5 accessed 14 November 2015. Item 4 mandates are established when the hrc resolves that a particular country situation warrants a public examination and the country concerned has not cooperated adequately with relevant un mechanisms. Typically, Item 4 mandates are established without the consent of the State concerned and do not enjoy their cooperation. Country specific mandates that typically enjoy country cooperation are under Item 10, established with the consent of the country concerned. However, even these mandates can face

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However, although securing the full cooperation of States is an important contributor to the overall success of a Special Procedure, the inability of a mandate holder to do so does not necessarily signify the inutility of these mechanisms. The range of challenges to various aspects of Special Procedure work, including the inability to secure various levels of state cooperation, can be mitigated through innovative approaches that advance a range of Special Procedure responsibilities. This includes their responsibilities to monitor, document and report on pressing or emerging issues of concern, to advocate for redress, and to mobilise international attention and action.17 The following discussion presents some of Ahmed Shaheed’s experiences gained by way of attempts to facilitate his responsibilities in the absence of state cooperation. First, we will discuss the types of state action that frustrate the work of the Special Procedures, along with the implications these actions pose for the efficacy of these mandates. A brief history of the Islamic Republic of Iran’s relationship with the Special Procedures will then provide the context in which many country-specific Rapporteurs must work, and a subsequent ­discussion about the coping mechanisms employed by Shaheed will later present ways in which these mandate holders can diminish the impact of non-­ cooperation on their work. Finally, we will discuss the benefits these strategies have had on facilitating Shaheed’s responsibilities, provoking shifts in state responsiveness and granting visibility to his advocacy efforts. ii

Forms of Non-cooperation and their Impact on Special Procedure Tools

Cooperation and non-cooperation with the Special Procedures are not dichotomous. State cooperation can range from substantive and sustained to limited forms of cooperation that coexist with confrontational attitudes. Ideally, cooperation would involve government facilitation of country visits, along with guarantees of non-reprisals against those who cooperate with mandate holders. Other forms of cooperation involve substantive responses to all communications that request a government cease practices that violate human rights, seek a government’s views, or that request information, especially 17

17

challenges of cooperation. The only other country mandate is established under Item 7, on Occupied Palestinian Territories. See Office of the un High Commissioner for Human Rights (ohchr) ‘Manual of Operations of Special Procedures’ (1 August 2008) accessed 9 January 2016.

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information about progress on, or obstacles to addressing rights violations raised by the human rights mechanism. Substantive responses to these inquiries, along with the facilitation of a sustained dialogue and cooperation with national stakeholders constitute a formula for constructive cooperation, which can lead to incremental improvements in situations of human rights, and can work to repair the reputation of governments accused of rights violations. The reality is, however, that all mandates wrestle with non-cooperation at various times and to various degrees. Manifestations of non-cooperation often include refusal to grant country access, non-responsiveness to communications, reprisals against those who cooperate with mandates, attacks on mandate holders, and the instrumentalisation of un mechanisms. These actions impair the effectiveness of Special Procedure tools, and as a result, impede the work of the Human Rights Council. A Refusal to Grant Country Access Country visits comprise one of the most important Special Procedure tools. They allow for in-person observation and provide the means to obtain firsthand information, which contributes to verifying allegations, documenting rights violations, and to researching thematic issues of concern. Visits can also facilitate an intensive dialogue with relevant state authorities, including those in the executive, legislative and judicial branches, which can provide insight into obstacles or opportunities for progress in implementing recommendations forwarded by the human rights mechanisms.18 These activities ultimately enhance the credibility and visibility of a mandate and can improve their impact in assisting national stakeholders to better realise human rights. Special Procedures are granted the resources to conduct biannual missions for about 14 days to countries concerned. Once a mandate holder obtains a State’s consent for a country visit, they often set about organising their itinerary by seeking guarantees for reasonable access to people and places of interest. This includes access to individuals that wish to report violations of their rights, or the rights of others, as well as access to civil society actors, government officials, detention facilities, schools, and areas impacted by environmental disasters. Access to relevant documents is also frequently sought.19 The mandate holder and his/her un staff, their equipment, and the documents they gather are entitled to diplomatic privileges.20 That is, governments 18 19 20

18 Ibid 16–20. 19 Ibid. 20 Ibid 7–9.

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should not seek to arrest mission participants or attempt to seize their belongings and material. Governments must also protect individuals that cooperate with Special Procedures. In this regard, mandate holders may seek written guarantees from officials of non-reprisals prior to a country visit.21 While country access and cooperation with Special Procedures during fact-finding missions is expected from States, it is not always easily obtained. Requests for visits from thematic and country-specific mandates alike can be rejected or can go unanswered for long periods of time, even in cases where States have issued standing invitations.22 A number of mandate holders never gain access to a country of interest during their tenure, as was previously the case with the expert that represented the discontinued mandate on the situation of human rights in Cuba,23 and is the case at the time of writing with the Special Procedures on the situation of human rights in Belarus,24 the Democratic People’s Republic of Korea,25 Eritrea,26 and the Islamic Republic of Iran.27 B Reprisals and Intimidation Reprisals are a particularly vicious form of non-cooperation and one that the hrc has unsuccessfully sought to address.28 Such acts may arise from a variety 21 22 23 24 25 26 27 28

21

Mandate holders agreed at their Annual Meeting in June 2015 that they should seek such written guarantees prior to undertaking a visit: see ‘Official Visit to Australia Postponed Due to Protection Concerns’ (un Information Centre Canberra, 15 September 2015) accessed 30 January 2016. 22 When States issue standing invitations, it means that they are prepared to receive a visit from any thematic mandate holder upon request. Many States see this action as a demonstration of cooperation with the Special Procedures, but these invitations are not legally binding and do not guarantee that a State will facilitate the visit of a mandate holder: see further Limon and Piccone (n 8) 24. 23 The mandate was established by the former un Commission on Human Rights (unchr) in 2003 and was later terminated in June 2007. 24 The Special Procedure was established by the unchr in 2004 and was later terminated in June 2007. The hrc re-established the mechanism in June 2012. 25 The mandate was established by the unchr in 2004 and was maintained by the hrc after its establishment. 26 The hrc established the mandate in 2012. 27 The hrc re-established the mandate in March 2011, after its termination by the unchr in 2002. 28 On 25 September 2013, 31 members of the hrc voted in favour of unhrc Res 24/24 (25 September 2013) un Doc A/HRC/RES/24/24, which requests the Secretary-General to designate a un-wide focal point to engage with Member States, among others, in order

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of motives, including penalising those who may have shared information that a government may not have wanted disclosed. Whatever the motive, reprisals have a chilling effect on those who might wish to communicate with a mandate holder, and discourage the mandate holder from considering meetings and interviews with alleged victims and other stakeholders who may be vulnerable to such punishment. There are documented cases of arrest, incommunicado detention, ill-­ treatment – including torture – and indeed killings of persons for passing information to un Special Procedures29 or for trying to address the hrc in Geneva.30 Anecdotal information from country visits undertaken by mandate holders also identifies forms of intimidation, such as the visible presence of state agents or photography to deter people from meeting with Special Procedures. In other cases, alleged victims and their family are pressured into keeping silent about rights violations.31 29 30 31

to promote and protect against reprisals and intimidation of individuals that cooperate with the un human rights mechanisms. The adoption of this resolution was essentially rejected by members of the African Group, which called for further consideration of the resolution by members of the un General Assembly. The African Group asserted that the appointment of a Representative required further consultation by the hrc in order to determine the feasibility of appointing a Representative, assess the possibility of duplication by establishing such a mechanism, and to determine the mandate of the Council to establish a mechanism that would bind un bodies. See unga ‘Summary Record of the 54th Meeting’ (27 November 2013) un Doc A/C.3/68/SR.54; unga ‘70th Plenary Meeting’ (18 December 2013) un Doc A/68/PV.70. For more on reprisals, see Lynch’s contribution to this volume. Since 2010, the Secretary-General of the un submits an annual report on reprisals to the hrc as mandated by unhrc Res 12/2 (12 October 2009) un Doc A/HRC/RES/12/2. For example, police detained human rights activist, Cao Shunli, in September 2013 while she was attempting to attend the hrc’s Universal Periodic Review on China. She was charged on 21 October with ‘unlawful assembly’. The activist died in a Chinese military hospital on 14 March 2014. Her body reportedly showed ‘signs of her mistreatment during approximately five and half months in detention’: see ‘China: Government Should Account for Activist’s Detention, Death’ (Human Rights Watch, 15 September 2015) accessed 24 November 2015. A number of these first-hand experiences were shared by mandate holders in the discussion on the question of reprisals held during the unhrc ‘Report of the Twenty-second Annual Meeting of the Special Rapporteurs/ Representatives, Independent Experts and Chairpersons of Working Groups of the Human Rights Council (Geneva 8–12 June 2015)’, notes on file with Shaheed who attended the meeting as a mandate holder. .

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C Attacks on Mandate Holders In addition to penalising those who communicate with mandate holders, some governments attack mandate holders on a personal level. These can include various forms of vilification, such as sexist insults or allegations of misconduct. Some of these attacks may take place during interactive debates at the un, in public and media platforms, or while a mandate holder is on mission in the country.32 In 2013, Special Procedure mandate holders expressed strong concern over ‘ad hominem attacks … which constituted intimidation’.33 In January 2015, the UN High Commissioner for Human Rights issued a public statement calling a particularly nasty incident ‘utterly unacceptable’, and describing such vilification of a un-appointed expert as ‘intolerable’.34 D Non-responsiveness to Communications Unresponsiveness to communications is another major challenge to the work of mandate holders. Special Procedures mainly use two types of communications – the allegation letter and the urgent appeal – both of which are confidential.35 These communications represent the primary tool for advocacy 32 33 34 35

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A religious leader offered personal attacks on the Special Rapporteur on the human rights situation in Myanmar during a country visit in which she discussed the crisis facing the country’s 1.3 million-strong Rohingya Muslim minority, stating, ‘Don’t assume you are a respectable person just because of your position, to us, you are just a whore’. See T Hume, ‘Top un official slams Myanmar Monk over “Whore” Comments’ (cnn, 22 January 2015) accessed 24 November 2015. Following her country visit to the United Kingdom, during which the Special Rapporteur on adequate housing criticised a tax policy she deemed problematic for human rights, some uk officials attacked the mandate holder, calling her a ‘loopy Brazilian leftie’: see M Chorley, ‘Tory Fury at “loopy Brazilian leftie” United Nations Official who Launched “Political” Attack on Government Welfare Reforms’ Daily Mail (London, 11 September 2013) accessed 24 November 2015. This latter instance is discussed further in the contributions of Hohmann and Freedman and Crépeau to this volume. unhrc ‘Report of the 20th Annual Meeting of the Special Rapporteurs/Representatives, Independent Experts and Chairpersons of Working Groups of Special Procedures of the Human Rights Council (Vienna 24–28 June 2013)’ (22 July 2013) un Doc A/HRC/24/55, para 36. ‘Comment by the High Commissioner for Human Rights Zeid Ra-ad Al Hussein on the Abuse of the Special Rapporteur on Human Rights in Myanmar, Yanghee-Lee’ (ohchr, 21 January 2015) accessed 25 June 2015. ohchr (n 17) 12–15.

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on behalf of alleged victims of human rights violations. They generally originate out of petitions made to the Special Procedures either directly or through the United Nations petition system by victims or stakeholders acting on their behalf. Allegation letters seek further information, or remedy and redress, where a human rights violation is alleged to have occurred, such as arbitrary detention or torture, while urgent appeals seek the State’s intervention to prevent or cease alleged practices that violate rights, such as in the case of an imminent execution or prior to the passage of legislation that may violate or undermine human rights obligations. They also remind authorities of their international human rights obligations and call on them to act in accordance with their commitments. The Special Procedures issued a total of 7,901 communications in the fiveyear period between 2008 and 2013. These communications elicited 3,988 ­replies from governments, or a response rate of 50.5 per cent,36 but most of the replies did not amount to substantive responses. And a study of the communications revealed that only 8 per cent of the responses indicated concrete steps taken to address violations raised.37 E Instrumentalisation of Human Rights Mechanisms During the Twenty-second Annual Meeting of the Special Procedures, mandate holders followed up on discussions held one year before, which identified the need to improve coordination among them.38 They recommended ‘country-specific and thematic mandate holders be more closely coordinated when the latter intend to visit a State which is already the subject of a Special Procedure mandate’.39 Follow-up discussions reaffirmed that it was established practice for mandate holders to consult with country-specific mandates, where they exist, before engaging with a country concerned. The goal of this approach is to avoid undermining the country mandate.40 These discussions touched on the state practice of instrumentalising human rights mechanisms; a tactic sometimes used by States to lessen the pressure to cooperate with a Special 36 37 38 39 40

36 37 38

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Limon and Piccone (n 8) 28–29. Ibid 31. The Twenty-second Annual Meeting of the Special Rapporteurs, Representatives, Independent Experts and Chairpersons of Working Groups of the hrc took place from 8 to 12 June 2015. unga ‘Report on the Twenty-first Annual Meeting of Special Rapporteurs/Representatives, Independent Experts and Working Groups of the Special Procedures of the Human Rights Council, including Updated Information on the Special Procedures’ (29 January 2015) un Doc A/HRC/28/41, para 39. Coordination Committee of the un Special Procedures, ‘Working Methods – Guidance Note on Country Action’ (June 2015). Copy on file with the authors.

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Procedure with which they would rather not engage. This may be particularly true of States, for example, that may wish to avoid scrutiny of sensitive issues of particular interest to certain thematic mandates. It is also the case for States subject to a country mandate that do not enjoy a constructive working relationship with the mandate holder. These States may reduce the risk of being scrutinised for non-cooperation by choosing to work with mechanisms deemed to be less problematic, because their style of work or topic of interest may be less intrusive or threatening to States’ reputations. And, in some instances, cooperation with a thematic mandate might even render a country mandate redundant. For instance, countries that reject repeated requests for visits from the relevant country-specific mandate, or from thematic Special Procedure mandate holders that wish to investigate issues deemed to be too sensitive, may later invite thematic Special Procedures seeking to examine an issue considered to be relatively benign to visit. Or a State may be willing to receive a human rights adviser41 attached to a resident un country team42 to avoid a public examination of its human rights situation. Some States may even issue a standing invitation after a long period of non-cooperation with a country mandate. This can change perceptions of their intention to cooperate with the human rights mechanisms and can diffuse pressure for their cooperation, especially with that country-specific Special Procedure. This practice of ‘mandate-shopping’ – opening the doors to Special Procedures who may not have the mandate to examine the most serious or pressing concerns in a country situation – manipulates the Special Procedures system and undermines the work of country mandates, and stated objectives of the Council. The Islamic Republic of Iran has had a particularly antagonistic relationship with both thematic and country-specific Special Procedures since its founding, and has, at one point or another, used these tactics to obstruct their work and/ or to deflect pressure to cooperate with them for over three decades. 41 42

41

Human Rights Advisers are experts deployed to the field by ohchr following the request of un Resident Coordinators to support un Country Teams. They follow up and analyse the human rights situation in the country in which they serve and advise the un Resident Coordinator and the un Country Team as a whole on strategies to build or strengthen nations’ capacities and institutions in promoting and protecting human rights. They also engage with national actors (governments and civil society) on how to best promote and implement human rights standards. 42 A un Country Team encompasses all the un entities that are present on the ground. They exist in 136 countries to ensure coordination among un agencies and to provide technical support to better ensure the delivery of tangible results in support of the development agenda of governments.

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The Islamic Republic of Iran: History of Cooperation

In 1984, the former Commission on Human Rights concluded that the human rights situation in Iran warranted a country-specific response and appointed Andres Aguilar as its Special Representative to report on the country situation.43 In his preliminary report to the Commission the following year, Aguilar indicated that he had been unable to establish a dialogue, or to secure cooperation from the Government.44 He identified a set of core rights that States, regardless of their cultural background, were obligated to uphold, and urged the Commission to invite a reaction from the Government.45 The idea was that if he could not secure cooperation, then he could, at the very least, present issues on which the Commission could carry out an exchange with Iran’s Government. A Country Visits The reports of two other mandate holders appointed from 1986 to 2002, pre­ sent a record of Iran’s mercurial cooperation with the Special Procedures.46 The second mandate holder, Reynaldo Galindo Pohl, was only able to visit Iran three times47 out of a possible 18 visits that could have been scheduled during his tenure from 1986 to 1995;48 and his successor, Maurice Copithorne, was only granted one of 12 visits that could have been scheduled during his tenure from 1995 to 2002.49 Iran announced its issuance of a standing invitation to all 43 44 45 46 47 48 49

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unchr Res 54 (14 March 1984) un Doc E/CN.4/RES/1984/54. unchr ‘Preliminary Report by the Special Representative of the Commission, Mr Andrés Aguilar, Appointed Pursuant to Resolution 1984/54, on the Human Rights Situation in the Islamic Republic of Iran’ (1985) un Doc E/CN.4/1985/20. 45 Ibid. 46 See R Afshari, Human Rights in Iran: The Abuse of Cultural Relativism (Penn up 2001) for an examination of Iran’s responses to un human rights monitoring. See also PJ Flood, The Effectiveness of uh Human Rights Institutions (Praeger 1998) 101–15. 47 These were in February of 1990 and 1991 and December of 1991. An evident spirit of cooperation by Iran in this period led to the extension of the mandate in March 1991 by consensus in the Commission. However, from 1992, Iran had ceased cooperation with the mandate holder. See Flood (n 46) 110–11. 48 Thematic and country-specific Special Procedures are provided resources by the un to schedule biannual country visits to report on the country human rights situation to the hrc (formerly to unchr) and to the unga. Thus, Galinda-Pohl could have undertaken a total of 12 visits in his six-year tenure, and Copithorne 18 over his nine-year tenure. 49 ‘A History of United Nations Special Representatives and Rapporteurs in Iran’ (Iran Human Rights Documentation Centre) accessed 22 June 2015.

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Special Procedures in 2002, officially extended in July 2002, along with other plans for engagement with the international community on human rights issues. Today, some argue that these gestures led to the rejection of the European Union (eu)-led resolution by members of the then Human Rights Commission in 2002 to renew the country-specific Special Procedure, which failed to adopt the resolution by a vote of 20 against, 19 in favour, and 14 abstentions.50 B Observance of the Standing Invitation From 2002 to 2005, the Iranian Government received visits from five mandate holders, all of whom raised serious concerns about arbitrary detention, the status of freedom of expression and opinion, the rights of migrants, violence against women, and access to adequate housing in Iran. However, requests for country access since 2005 have gone unanswered. This includes requests for visits from the Special Procedure on the Situation of Freedom of Religion or Belief, and from the Working Group on Enforced or Involuntary Disappearances, despite Iran having agreed to do so in 2003 and 2009, respectively.51 As indicated in Table 6.1 below, repeated requests from five other thematic Special Procedures from 2005 to 2011 have also gone unanswered altogether.52 In the absence of information and access to the country, and amid a surge of reports about widespread violations of human rights following the country’s 2009 presidential elections, the hrc re-established a country-specific mandate on the human rights situation in Iran.53 C Special Procedure Communications: 2004–2015 In addition to a lack of reporting to the un treaty bodies,54 Iran failed to regularly respond to communications issued by the Special Procedures. A 2009 50 51 52 53 54

50 ‘Iran: un Fails to Condemn Rights Abuses’ (Human Rights Watch, 22 April 2002) accessed 20 June 2015. 51 For a list of country visits made, see ohchr ‘Country and Other Visits Made by Special Procedures Mandate-holders since 1998’ (ohchr, 22 June 2015) accessed 25 November 2015. 52 Ibid Table 6.1. 53 See unhrc ‘Interim Report of the Secretary-General on the Situation of Human Rights in Iran’ (14 March 2011) un Doc A/HRC/16/75. 54 Iran submitted its third report on the status of civil and political rights in the country in 2009 after a gap of 17 years. The Government first submitted its report on the status of economic, social and cultural rights in 1987 and did not report again to the treaty body for these rights until 2009. It reported on the status of the rights of children in the country in 1998, 2003 and 2013. Reports to the Committee on the Elimination of All Forms of Racial Discrimination were submitted the most frequently: 1993, 1998, 2003 and 2008. See generally for status of reporting under human rights treaties.

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Table 6.1

The Islamic Republic of Iran: response to requests for visits from 200355

Special Procedure

Year of request for country Status of visit/year of country visit request

Follow-up requests

Working Group on Arbitrary Detention

Visited in 2004

n/a

sr on Freedom of Expression and Opinion

Visited in 2003

n/a

sr on the Rights of Migrants

Visited in 2004

n/a

sr on Violence against Women

Visited in 2005

n/a

sr on Adequate Housing

Visited in 2005

n/a

sr on Freedom of Religion or Belief

Request for visit issued in 2003

Agreed upon sr requested dates in: 2006, 2008 & 2010

Working Group on Enforced or Involuntary Disappearances

Request for visit issued in 2006

Agreed upon wgeid requested dates in: 2009, 2010, 2011, 2012 & 2013

sr on Minority Issues

Request for visit issued in 2008

Unanswered

None

sr on Freedom of Opinion Request for visit issued in & Expression 2010

Unanswered

None

sr on Independence of Judges & Lawyers

Request for visit issued in 2006

Unanswered

2008 & 2011

sr on Extrajudicial, Summary and Arbitrary Executions

Request for visit issued in 2004

Unanswered

2005, 2006, 2008, 2010 & 2013

sr on the Situation of Human Rights in Iran

Request for visit issued in 2011

Unanswered

Requests repeated on an annual basis

sr on Food

Request for visit issued in 2011

Unanswered

State issued invitation in March 2015

Working Group on Discrimination against Women in Law and in Practice

Request for visit issued in May 2014

Unanswered

Reminder issued to Iran in August 2015

55

55

Iran has facilitated visits for only 5 of the 14 Special Procedures that have requested country visits since 2003: see ohchr (n 51).

Coping Mechanisms For State Non-cooperation No Response

Immaterial Response

Steps Taken to Address

Violation Rejected

169

Responsive but Incomplete

7% 25% 1% 8%

Figure 6.1

59%

The Islamic Republic of Iran: responses to communications issued by Special Procedures.

study of communications issued to 174 Member States revealed that Iran was the highest recipient of the 8,713 Special Procedure communications issued between 2004 and 2008, with 549 total communications.56 Of these, the Iranian Government took steps to address issues raised in 1 per cent of the communications, rejected allegations raised in a quarter transmitted during that period, and was unresponsive to almost 60 per cent of all communications issued in that timeframe.57 A follow-up study carried out in 2014 shows that Iran continued to have one of the lowest response rates – a rate of 33 per cent – from 2008 to 2013.58 A total of 98 communications had been sent to Iran as of 30 June 2015, including 9 communications in the first half of 2015, since the mandate began its work in August 2011. A majority of these communications were Joint Urgent Actions, which account for 84 per cent of all transmissions. These communications 56 57 58

56 57 58

T Piccone, ‘Catalysts for Rights: The Unique Contribution of the un’s Independent Experts on Human Rights’ (Brookings Institute 2010) 33. unhrc ‘Report of the Special Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran’ (6 March 2012) un Doc A/HRC/19/66, para 3. Limon and Piccone (n 8) 30.

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cover a total of 297 individuals. Iran responded to 45 of them by mid-2015, or 52 per cent of all communications.59 iv

Coping Mechanisms: Mitigating the Impact of Iran’s Non-cooperation from 2011 to 2015

As had occurred with other Special Rapporteurs on the human rights situation in Iran, Shaheed was initially unable to make contact with the Iranian Government to begin a dialogue or to secure cooperation by way of a country visit. Like his predecessor, Andres Aguilar, Shaheed prepared an initial catalogue of allegations on which the members of the General Assembly and hrc could engage with Iranian officials in the absence of a dialogue or country access.60 In the ensuing years, Shaheed’s methodology of work endeavoured to diminish the impact of insufficient resources to support his work, as well as a lack of state cooperation on his ability to carry out his mandate. The initial development of this methodology involved consultations with a number of individuals and organisations that contributed to Shaheed’s understanding of the context in which he could expect to conduct his work, along with the challenges that would lie ahead. Shaheed worked with the University of Essex to facilitate consultations with a former representative of the Iran-related mechanism, and several former representatives of thematic Special Procedures in the months following his appointment. This unique exercise gave the experts an opportunity to discuss the strengths and shortcomings of their work with Shaheed, and it also gave Shaheed a chance to explore the various forms of state non-cooperation experienced by the mandate holders during their tenures. A number of meetings were also held with staff of the Office of the un High Commissioner for ­Human Rights (ohchr) to identify constraints to Special Procedure work and to discuss precedents for effective responses to the challenges at hand that generally result from a lack of state cooperation. Discussions were also held with serving country mandate holders, especially those established under Item 4. 59 60

59

60

Since September 2011, the Special Procedures have submitted a Joint Communications Report to each session of the hrc containing a summary of all communications sent and replies received in each reporting period. However, the information is organised in chronological order rather than by country. See unhrc ‘Communications Report of Special Procedures’ (2 June 2015) un Doc A/HRC/29/50. The allegations presented to the unga in the months after Shaheed’s appointment emanated the violence of the 2009 elections: see unga ‘Report of the Special Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran’ (23 September 2011) un Doc A/66/374.

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Consultations highlighted the resource challenges facing most Special Procedures. Over the years, the Special Procedures system has expanded without corresponding resource increases to support it.61 The result has been diminishing resources for these mechanisms, especially for country mandates, which have even less resources to facilitate their work than those of a thematic nature.62 Thematic mechanisms, for example, are usually only assigned one staff member to monitor the issues under their purview in 193 countries,63 and resources can only support a fraction of one staffer’s time for countryspecific Special Procedures.64 Like all Special Procedures, the Iran mandate is only allotted two, 14-day fact-finding missions annually to visit Iran or to visit countries that host Iranian diaspora.65 Therefore, Shaheed was required to supplement these visits with other means to conduct follow-up work, or to continuously engage with Iranian populations located in the country. Support for country-specific work, which must engage populations that do not work in official un languages is also almost non-existent. un resources support the translation of content originally presented in one of the five official un-languages, to one or more of the other official languages of the United Nations, but do not typically support the translation of content presented in non-official un languages.66 Although ohchr does provide interpretation services for country-specific mandates that must engage populations in non-un languages, such as Persian, these resources predominately support mandate holder engagement with people of interest during country visits. Therefore, support for Persian to English language translation of the volumes of information submitted to Special Rapporteur annually is severely limited, or nonexistent. Likewise, in the absence of English to Persian language translation,67 61 62 63 64 65 66 67

61 Limon and Piccone (n 8) 20–22. 62 Ibid 20–23. 63 Piccone (n 56) 31. 64 Ibid. 65 ohchr (n 17) 17. 66 The un works in five languages. The official languages of the institution include English, Spanish, French, Arabic and Chinese. Rule 53 of the unga ‘Rules of Procedure of the General Assembly’ (2008) un Doc A/520/Rev.17 states: ‘Any representative may make a speech in a language other than the languages of the General Assembly. In this case, he shall himself provide for interpretation into one of the languages of the General Assembly or of the committee concerned. Interpretation into the other languages of the General Assembly or of the committee concerned by the interpreters of the Secretariat may be based on the interpretation given in the first such language’. 67 The mandate holder’s working language is English. All reports and statements produced by him and a range of thematic Special Procedures are originally produced in English.

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much of the un information produced about the human rights situation in Iran remains inaccessible for most Iranians, especially those who would perhaps benefit most from access to this information. To address these challenges, the mandate holder worked with academic institutions and a range of civil society actors to identify best practices and to develop coping mechanisms that would diminish the impact of Iran’s recalcitrance on Shaheed’s ability to facilitate his work. Together these activities constituted substitutes for dialogue and country access, essentially establishing alternative means for gathering information and reporting on the country situation, and allowing Shaheed to mobilise international attention and action. A Substitutes for Country Access Country-specific mandate holders that are unable to secure access to the country under their purview are at a disadvantage. This is because they lack direct access to people and places of interest necessary for examining the veracity of allegations reported to human rights mechanisms, and for understanding the context in which violations take place. Without country access, mandate holders are also unable to personally observe the workings of the institutions and processes. And they are unable to speak directly to parliamentarians, judges, law enforcement agents, prison wardens, lawyers, medical professionals, and other functionaries in charge of agencies with mandates, policies and programmes that contribute to the realisation of human rights. In lieu of this access, mandate holders undertake ‘fact-finding missions’ in countries neighbouring the State concerned, or in countries that host migrant workers, asylum seekers, refugees, or diaspora communities.68 Iran itself contributed to the establishment of this practice when it facilitated a 1994 visit from the un Special Rapporteur on Iraq who was appointed to assess widespread reports of abuse under Saddam Hussein.69 The Iranian Government has not, however, granted Shaheed country access since his appointment to the 2011 Special Procedure. And a visit to its contiguous neighbours, which host substantial migrant communities, has not been possible due to security considerations or other difficulties in getting timely access to those countries. In light of these circumstances, the mandate holder conducts visits to third 68 69

68

The practice widely used by Item 4 mandates today of undertaking fact-finding missions to neighbouring countries or other countries hosting refugee populations was initiated by Max van der Stoel, Special Rapporteur on Iraq, and authorised by unchr Resolution 74/1994 of 9 March 1994: see unchr ‘Report of the Fiftieth Session’ (4 March 1994) un Doc E/CN.4/1994/132. 69 See unga ‘Situation of Human Rights in Iraq’ (8 November 1994) un Doc A/49/651.

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countries that host recently-departed asylum seekers and burgeoning Iranian diaspora communities, including countries like France, the United Kingdom, Germany, Norway and Sweden.70 Shaheed also uses cheap, safe and easily accessible technology – unfortunately unavailable to his predecessors – to engage individuals who wish to petition the Special Procedures for relief. This includes platforms such as Skype, Google Hangout and WhatsApp, which enabled Shaheed and a team of researchers and interpreters to safely communicate with close to 700 individuals located inside and outside Iran since 2011.71 These individuals provided first-hand information about cases that emanated out of events alleged to have taken place as far back as the 1980s and as recently as a few weeks prior to the biannual presentations of Shaheed’s reports to the un. Details conveyed during online interviews that spanned hours, days, and at times, weeks, and information gathered from court documents and other supporting documentation passed along by individuals via encrypted email messages to corroborate their statements, establish a longitudinal account of state practices over three decades that highlights the prevalence of human rights violations in Iran. This information also prompted dozens of un communications and public statements jointly transmitted and published with thematic mechanisms, which urge the cessation of practices that violate fundamental human rights in Iran, and call attention to pressing developments that violate Iran’s international human rights obligations. This method of engaging with individuals in Iran has largely transpired without incident.72 Online applications offer interviewees a level of security against retaliation and present options for anonymity. For the mandate holder, these tools work as efficient and tactful means to monitor and report on a countrysituation by granting Shaheed the space to conduct lengthy discussions and 70 71 72

70 71 72

See e.g. unga ‘Report of the Special Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran’ (6 October 2015) un Doc A/70/411. For more on the potential of information and communication technologies for the work of sp, see McPherson and Probert’s contribution to this collection. However, there have been many allegations of reprisals against those the authorities in Iran accuse of cooperating with international human rights mechanisms including the un Special Procedures. At least 15 individuals have reportedly been detained, prosecuted or faced intimidation for allegedly contacting the un Special Procedures since 2011. However, in all these cases the persons have either made no contact with the Special Rapporteur’s office, or have made voice calls over mobile phones. See e.g. unhrc ‘Report of the Special Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran’ (12 March 2015) un Doc A/HRC/28/70, para 11.

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manage protocols for sensitive interviews where the risk of re-traumatising subjects is high – a practice that is difficult to undertake during hectic country visits largely focussed on engaging with officials and civil society actors. Furthermore, the breadth of content presented on dozens of Government and Persian-language media websites also provided access to information that would otherwise have emanated from meetings with government officials. And while information on these websites is no substitute for knowledge that can be shared via in-country meetings with government officials, this information has both assisted in identifying emerging developments that should be monitored, and contributed to an understanding of the underlying sources of human rights violations in Iran. Lastly, this technology has enabled sustained engagement with Iranian civil society actors, including academics, journalists and human rights defenders ­located inside and outside the country. These communication tools have clearly extended the reach of the mandate holder and given him access to a network of organisations and experts representing a wide range of subject matter and interests to identify issues of concern, along with empirical solutions. Drawing on the Expertise and Resources of Third-party Civil Society Institutions Drawing on the resources and expertise of third-party civil society actors in the absence of adequate resources or country access can be quite useful. In an attempt to better assess the use of torture in the Iran, for example, Shaheed consulted medical experts with intimate knowledge of the use of torture during various periods in Iranian history as an alternative to engagement with members of a national human rights mechanism,73 law enforcement officials, lawyers and medical experts in the country. In consultation with Freedom from Torture (FfT),74 for example, Shaheed examined the veracity of allegations about widespread abuse in the weeks and

B

73 74

73

74

Iran does not possess a national human rights institution that complies with the Paris Principles on national human rights institutions: unga Res 48/134 (20 December 1993) un Doc A/RES/48/134, Annexe. The organisation tasked to identify and address human rights issues in the country – the High Council for Human Rights – is part of the Iranian Judiciary and, therefore, lacks independence. The organisation categorically rejects all allegations of human rights violations in the country. See e.g. ‘Iran Raps Ahmed Shaheed for Unfair Report’ (High Council for Human Rights, 8 October 2014) accessed 10 January 2016. FfT is a uk-based human rights organisation and one of the world’s largest torture treatment centres. The organisation has received more than 50,000 referrals since 1985. See generally .

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175

months following Iran’s 2009 presidential elections. FfT worked to evaluate the cases of 50 out of 150 individuals that sought treatment with the organisation after reporting abuse that took place just before or immediately following the 2009 unrest. Evidence gathered from patients during extensive medical exams and interviews with clinicians was presented to the mandate holder75 for comparison with information conveyed in dozens of interviews with individuals that raised complaints with the Special Procedure about abuse while detained in Iran between 2009 and 2011. Notable similarities between information gathered by the mandate holder and content presented in FfT’s medical-legal reports provided a sound basis for concluding that allegations of torture in the weeks and months following the 2009 Iranian presidential elections were quite credible.76 In another example, the mandate holder commissioned a report,77 jointly produced by the Iran Media Program at the University of Pennsylvania and the Human Rights in Iran Unit at the City University of New York, Brooklyn College (cuny-bc), which explored online censorship in Iran. The report presented data derived from a study that used proxies based in Iran to determine the total number of ‘filtered’ Persian-language entries on Wikipedia. Researchers identified 1,187 blocked Persian entries on the open-source site and then analysed and catalogued those entries by topic in order to discern potential patterns in direct and ‘keyword’ censorship tactics used by the Iranian Government. The study found that entries related to civil and political rights, those that discussed religion and those that touched on sexual issues constituted an outright majority of blocked articles, with civil and political entries leading the pack. The study provided rare and valuable insight into the types of ideas and individuals deemed most sensitive or worrisome by censoring officials, and revealed that many sensitive issues were related to human rights, some of Iran’s own laws, and a number of the country’s public figures.78 75 76 77 78

75

See ‘Torture in Post-Election Iran 2009–2011: Summary Report for the un Special Rapporteur on the Situation of Human Rights in Iran, December 2012’ (FfT, December 2012) accessed 20 November 2015. 76 See unhrc ‘Report of the Special Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran’ (28 February 2013) un Doc A/HRC/22/56. 77 See N Nazeri and C Anderson, ‘Citation Filtered: Iran’s Censorship of Wikipedia (Report)’ (CitationFiltered.org, 5 November 2013) accessed 20 November 2015. 78 See unga ‘Report of the Special Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran’ (4 October 2013) un Doc A/68/503, paras 12–13.

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Third-party organisations also contributed to studies on the impact economic sanctions may have had on Iran’s humanitarian situation in light of growing international concerns and amid official statements about worrisome economic conditions following the withdrawal of services facilitated by the Society for Worldwide Interbank Financial Telecommunication (swift).79 The Special Rapporteur began to receive concerning reports in early 2012 about the impact of economic sanctions on Iran’s humanitarian situation. This includes reports of drug shortages used in the treatment of serious illnesses and rising food prices that gave rise to concerns that humanitarian exemptions built into the sanctions regime had not been effective. Shaheed noted in 2012 that he would seek the cooperation of the Iranian Government and sanctions-imposing countries to effectively report on the efficaciousness of humanitarian safeguards. Sanctions-imposing countries granted requests for information about their efforts to strengthen humanitarian protections, but a survey communicated to Iran’s Ministry of Foreign Affairs that requested information from Government agencies and un offices located in the country about health and trade indicators to assist in assessing the impact of sanctions went largely unanswered.80 As an alternative, Shaheed worked with the cuny-bc and the International Senior Lawyers Project81 to evaluate the effectiveness of exemptions embedded in us and eu sanctions regimes in mitigating unintended humanitarian consequence.82 Contributions from these two organisations outlined the scope and operation of humanitarian exemptions and reviewed us and eu export data, which suggested that despite humanitarian exemptions, financial institutions were refusing to handle Iran-related transactions, because they did not fully appreciate the legal parameters surrounding humanitarian trade exceptions.83 79 80 81 82 83

79

swift provides a network that enables financial institutions worldwide to send and receive information about financial transactions and is essentially the international system for bank transfers. Its withdrawal from Iran essentially cut off Iranian banks from the rest of the world, making trade incredibly difficult. 80 See unhrc ‘Report of the Special Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran’ (28 February 2013) un Doc A/HRC/22/56, paras 75–78. 81 The International Senior Lawyers Project ‘advises civil society and governments in focussed areas that foster just and accountable development, which is sustainable, supportive of human rights, and strengthens the rule of law’: see . 82 Akin Gump Strauss Hauer & Feld LLP, ‘u.s. and eu Sanctions Against Iran: De Jure and De Facto Limitations on the Operation of Humanitarian Exemptions’ (Prepared for Human Rights in Iran Unit of the City University of New York) (islp, 29 October 2014) accessed 26 June 2015. 83 Ibid 20–23.

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Shaheed drew on the study to call international attention to the potential negative consequences of sanctions, and to identify solutions.84 This included recommendations for more active and effective outreach by sanctions-imposing countries, to provide clarity so that actors could engage in transactions with confidence.85 While the study was not an adequate substitute for information that could have been provided by the Government, it provided a firm basis for the mandate holder to make authoritative observations on a subject that had become highly politicised – even in Iran itself. C Enhancing Legitimacy, Relevance and Visibility of the Mandate Governments that violate human rights and exercise censorship often seek to limit access to information deemed inconvenient to the authorities, including information relating to international assessments of the situation of human rights in the country. Many categorically reject allegations of human rights violations and often deny that there is a basis for international concern.86 Iran often regards criticism of its human rights practices as culturally insensitive and maintains that censure emanates from long-standing enmities with other members of the international community – thereby questioning both the legitimacy and relevance of the country-specific mandate.87 Shaheed has sought to address these views by highlighting instances where Iran violates its own laws, such as in the case of torture, or that of its voluntary international commitments, such as Iran’s commitments to equality and non-discrimination.88 Shaheed has also endeavoured to maintain the mandate’s relevance by trying to call attention to egregious human rights abuses, such as violations of the rights to life, equality, expression, association, and assembly, and by attempting to capture domestic narratives about human rights related issues that were not necessarily prioritised by the international community, but that 84 85 86 87 88

84 85 86

87 88

unga ‘Report of the Special Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran’ (27 August 2014) un Doc A/69/356. Ibid 34–38. A good typology of state responses to human rights criticism is provided in S Cohen, ‘Government Responses to Human Rights Reports: Claims, Denials and Counterclaims’ (1996) 18 Human Rights Quarterly 517. Detailed replies of the Government of Iran to the reports of the Special Rapporteur are available at . unhrc (n 72) para 4; unhrc ‘Report of the Special Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran’ (13 March 2014) un Doc A/HRC/25/61, para 28.

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were important to the various communities in the country. This includes environmental degradation, the impact of sanctions, or election-related human rights concerns. Shaheed’s work also attempted to contribute to the work of other human rights mechanisms, including the Council’s Universal Periodic Review (upr) and reviews by treaty bodies.89 Thematic research focussed on Iran’s progress in implementing hundreds of recommendations accepted during its 2010 and 2014 upr cycles, as well as on the implementation of recommendations forwarded by treaty bodies in 2011 and 2013.90 The work of Special Procedures can mobilise significant attention and can provoke both international and domestic debates about specific issues or country situations. However, non-cooperation and insufficient resources pose challenges to this aspect of the Special Procedures’ work. This is especially true in countries where governments actively filter information meant to be accessible to the general public. Furthermore, as stated earlier, a lack of resources to support country-specific mandate holders that must engage with populations that do not work in one of the official un languages reduces that population’s access to information generated in multilateral forums, in the international press and by un agencies and mechanisms. In Iran’s case, information presented on un websites can be accessed from the country, but this information is only available in official un languages, which does not include Persian. This can diminish the meaning, relevance and visibility of the mandate’s work for Iranians, which is reinforced by facilitating their access to the international discourse on their country’s human rights situation. Shaheed’s efforts to improve their access involved working with academic institutions and social media experts to develop tools, such as a distinct website91 for the mandate. With over 46 million online users in the country and an increasingly organised and sophisticated civil society, online applications and platforms provided Shaheed with the means to connect Iranians to the international discussions and processes that impact their country situation, 89 90 91

89

90

91

Iran participated in two uprs and accepted hundreds of recommendations in 2010 and 2014 at the outcome of those reviews: see unhrc ‘Report of the Working Group on the Universal Periodic Review: Islamic Republic of Iran’ (15 March 2010) un Doc A/HRC/14/12; unhrc ‘Report of the Working Group on the Universal Periodic Review: Islamic Republic of Iran’ (22 December 2014) un Doc A/HRC/28/12. unga ‘Report of the Special Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran’ (13 September 2012) un Doc A/67/369; un Doc A/HRC/25/61 (n 88); unga (n 84). The City University of New York, Brooklyn College hosts a website in support of the mandate’s work: see .

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which improved their ability to scrutinise their Government’s behaviour on the international stage. Shaheed’s website hosts Persian-language translations of Special Procedure reports to the un General Assembly and the hrc, the work of other Special Procedures and the work of the un Secretary General, along with international human rights laws and standards. Other organisations have also facilitated webcasts with simultaneous interpretation services of discussions undertaken by the General Assembly and the Council on the human rights situation in Iran.92 Cataloguing documented cases of human rights violations through the annual reports of the Special Rapporteur also creates further domestic interest in the international discourse.93 And like other country-specific mandate holders, Shaheed’s practice of sharing information with various treaty bodies or other mandates, and organising joint communications and press statements with thematic Special Procedures have further boosted the presence and relevance of the mandate at the international level. Shaheed’s work to mobilise international attention has also included participation in panel discussions, seminars, symposia and other public engagements, along with regular interactions with Iranian civil society and numerous briefings for diplomats, policy makers and opinion formers in a number of countries. And while this work has increased awareness about the human rights situation in Iran, it has also raised the reputational stakes for the Iranian Government’s lack of constructive engagement with the mandate, since these public appearances ultimately raise the issue of Iran’s non-cooperation. v Impact A country mandate is one of many human rights mechanisms deployed by the un and indeed by the human rights movement to address concerns about rights violations. Therefore, identifying a particular outcome with a specific 92 93

92

93

Balatarin, a Persian language social and political link-sharing website aimed primarily at Iranian audiences, hosted simultaneous translations of un dialogues on the human rights situation in Iran and online forums that facilitated discussions between Iranians located inside and outside the country and the mandate holder: see e.g. accessed 23 November 2015. According to current practices of the un, the Special Rapporteur is allowed to annex a list of cases documented by the mandate in reports filed with the hrc, but not with the unga.

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mechanism or indeed intervention might often not be possible. Moreover, it is highly unlikely that a State would consciously attribute any measure that it may take to address a human rights situation to a un mechanism that it regards as having no legitimacy or validity, as is often the case with Item 4 country mandates. With this caveat, and given the importance of eliciting state cooperation and contributing to remedies for victims of alleged rights violations, the impact of the mandate is perhaps best assessed in relation to these two priorities. A Encouraging Cooperation The Special Rapporteur has experienced various levels of cooperation from Iranian officials since the onset of his mandate, which appears to reflect the distinctly nuanced approaches of two presidential administrations. Overall attitudes towards the country-specific mechanism have not changed.94 However, recalcitrance and belligerence have somewhat given way to a nascent dialogue along with other forms of perfunctory, at times substantive, engagement. For example, Iran’s response rate to Special Procedure communications, including those requesting information, has somewhat improved, and the Government began to submit extensive comments to the Rapporteur’s reports 16 months into the mandate.95 The Government’s attitude towards requests from the thematic Special Procedures has also somewhat shifted, moving from complete reticence on country visits since 2005 to formally extending an invitation to a thematic mandate holder in 2015, and declaring that Iran is prepared to receive the country-specific mandate holder on negotiated terms.96 For some, cooperative gestures with a Special Procedure or other human rights mechanisms – even in the absence of tangible results – are an indication of goodwill towards the work of the Council.97 And as a result, countries 94 95 96 97

94

95 96

97

See ‘Official: Iran has a Problem with Shaheed’ (Kayhan, 26 October 2014) accessed 28 November 2015; ‘Tehran Professor Decries Iran’s Criticism of un Human Rights Expert’ (ichri, 6 April 2015) accessed 28 ­November 2015. Iran submitted its first reply to reports produced by the 2011 mandate in October 2012: see . ‘Human Rights Official: Iran Not Afraid of Visits by Human Rights Official’ (High Council for Human Rights, 5 May 2015) accessed 28 November 2015. In an explanation of the vote before the 2015 hrc vote to renew the Special Procedure on Iran, Brazil said Iran’s cooperation with the upr and its invitation of the High

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that are subject to country-specific mechanisms may consider inviting a Special Procedure and/or increasing the response rate to their communications as relatively effective alternatives to taking substantive and tangible measures to defuse pressure. Perhaps this explains Iran’s shift in approach to engaging the Special Procedure after initially denouncing its establishment in 2011 and wholly dismissing cooperation with the mandate holder.98 The Government’s shift from non-existent to nominal cooperation with Shaheed, along with its new approach to certain thematic mandates after a decade of non-engagement,99 is also arguably related to Iran’s desire to earn international credit, which could result in the country’s removal from the list of countries monitored by a country-specific Special Procedure.100 In this regard, the Iranian Government’s unresponsiveness did not appear to serve it well in the early years of the mechanism.101 Especially given the abundance of 98 99 100 101

Commissioner and Special Procedures should be acknowledged. The explanation came before Brazil withdrew its support for the mandate: see ‘Human Rights Council Adopts Ten Texts, Extends Mandates on Syria, Iran, Democratic People’s Republic of Korea and Myanmar’ (ohchr, 27 March 2015) accessed 11 January 2016. 98 See unga (n 90) paras 3–4; unga (n 70) para 5. 99 Iran issued its first invitation in ten years to a thematic Special Procedure in March 2015: see ohchr ‘Country and Other Visits by Special Procedures mandate holders since 1998’ (ohchr, 30 December 2015) accessed 28 November 2015. 100 In 2002, the unchr rejected the resolution to extend the Special Procedure on the situation of human rights in the Islamic Republic of Iran for an additional year by 20 votes to 19 with 14 abstentions. It is arguable that Member State perceptions of Iran’s increased cooperation and positive developments in the Iran’s human rights situation led to the decision of many to either abstain or vote against the resolution: see unchr ‘Fifty-eighth Session: Summary Record of the 49th Meeting’ (22 April 2002) un Doc E/CN.4/2002/SR.49. 101 The sharp rise in votes against Iran in the annual unga resolution in November 2011 could largely be attributed to Iran’s refusal to cooperate with the newly established country mandate. The vote on the resolution jumped to 89–30 in 2011, while it was 78–48 the previous year. In 2011, a proposal by Iran to take no action on the draft resolution was rejected by 100 votes to 35 with 42 abstentions. See unga ‘89th Plenary Meeting’ (19 December 2011) un Doc A/66/PV.89; unga, ‘71st Plenary Meeting’ (21 December 2010) un Doc A/65/ PV/71. Likewise, the number of members voting for the resolution to extend the work of the Special Procedure increased from 22 hrc members in favour in 2011 to 26 in favour in 2013: see un Office at Geneva, ‘Human Rights Council Adopts 11 Resolutions on Iran, Democratic People’s Republic of Korea and Israeli Settlements’ (unog, 22 March 2012) accessed 22 January 2016; un Office at

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information produced by the Special Procedure in spite of the mandate holder’s inability to secure on the ground access to people and places of interest. And categorical non-cooperation also did not serve the Government’s efforts to defend its reputation with regard to Iran’s human rights record. In the absence of a dialogue or responses to Shaheed’s petitions, the mandate holder’s biannual reports to the United Nations largely lacked the Iranian Government’s views. In other words, multiple allegations of rights violations remained largely unanswered by the Iranian Government and likely contributed to increased support for un resolutions on the situation of human rights in the country.102 Moreover, some contributors to Iran’s domestic political discourse began to question the Government’s approach to the mechanism, with some prominent critics in the country calling for increased engagement with the mandate holder, including by granting a country visit.103 Iran, therefore, may have considered a certain level of engagement with Shaheed and other human rights mechanisms to be a less costly approach to addressing domestic criticism and eventually ridding itself of the Council’s scrutiny of its human rights situation. B Contributing to Remedy Unfortunately, measuring the on-the-ground impact of international efforts to promote and protect human rights in a given country is not easy. The variety of determinants for Special Procedure influence highlights both the multiplicity of variables and the complexity of the processes involved.104 However, since 102 103 104

Geneva, ‘Human Rights Council Extends Mandate on Syria, Iran and Freedom of Religion or Belief’ (unog, 22 March 2013) accessed 22 January 2016. 102 Ibid. 103 Two prominent academics in Iran called on the newly elected Rouhani Administration to approach the Special Procedure differently than its predecessor. Others called on Iran to allow the Rapporteur to visit the country and to respond to his reports in more detail, rather than categorically dismissing allegations. The Government began to respond to the Special Rapporteur’s reports in marked detail in 2015: see ‘Tehran Professor Decries Iran’s Criticism of un Human Rights Expert’ (ihrdc) (n 94). 104 Limon and Piccone (n 8) highlight six variables as vital to the influence that may be exerted by a Special Procedure. These are independence, expertise, flexibility, cooperation, follow-up and availability of resources. A good account of the micro-processes involved in influencing state actors to alter their behaviour with regard to human rights practices is provided by R Goodman and D Jinks, ‘Social Mechanisms to Promote International Human Rights: Complementary or Contradictory?’ in T Risse, SC Ropp and K Sikkink (eds), The Persistent Power of Human Rights (cup 2013) 103–21.

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non-cooperation often stems from the desire to reduce public scrutiny of a given human rights situation, the extent to which a mandate holder can contribute to this process itself must be seen as an indication of success. Positive domestic effects that result from a transparent international examination of the Iranian human rights situation can, therefore, be credited to the Iranrelated mandate, even if the role merely functions as a catalyst for engagement and debate. In some instances, public scrutiny of specific cases driven by the Special Procedure contributed to drawing further attention to the human rights chal­ lenges facing Iran and, at times, has arguably contributed to positive outcomes.105 During an interactive dialogue with members of the hrc in March 2012, for example, Shaheed raised alarm over the case of a Christian Iranian Pastor, Yusuf Nadarkhani, who was reportedly facing a death sentence after being convicted on charges of apostasy. In response, the representative of the Iranian delegation, Dr Javad Larijani, charged the mandate holder with prevarication and asserted that, in actuality, the Pastor was facing the death penalty for discussing his religion with children in the absence of their parents’ consent, converting the basement of his home into a church without a permit, and for offending Islam through the preaching of Christianity.106 The response forwarded by the Government sparked widespread news coverage and international outrage, which likely contributed to the Government’s reconsideration of the case six months later.107 Similarly, after years of denying that torture was practised in Iran, officials conceded that allegations of torture existed during the hrc’s 2013 discussion 105 106 107

105 For example, on 19 March 2014, Iranian media reported on the screening of a four-part documentary entitled ‘The Mission of the un Rapporteur’ produced by Amir Hossein Abadi, (Mashregh News, 19 March 2014) ایراین‬accessed 25 May 2015. 106 See ‘31st Meeting of the Human Rights Council’ (un Webcast, 12 March 2012) 1:04:32 accessed 22 January 2016; P Goodenough, ‘Iranian Government Says Christian Pastor Insulted Islam But Denies He Faces Death Penalty’ (CNSNEWS, 13 March 2012) accessed 30 November 2015. 107 Pastor Yusuf Nadarkhani was released in September 2012 after officials reportedly reduced his charges from apostasy to ‘evangelising Muslims’, which only calls for a threeyear term in prison. Nadarkhani was released on time served: see M Bennett-Smith, ‘Pastor Youcef Nadarkhani Freed’ (Huffington Post, 8 September 2012) accessed 22 January 2016.

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on the human rights situation in Iran following Shaheed’s presentation of the aforementioned report authored by Freedom from Torture.108 Iran also announced an internal review of its detention facilities following extensive reporting on prison conditions in Iran,109 and some witnesses have provided anecdotal information to the Special Procedure on the positive impact the mandate’s focus has had on custodial treatment. And in other cases, Special Procedure scrutiny has prompted domestic debate on sensitive topics of concern. After several reports on the impact of Iran’s drug laws on the status of protections for the right to life, for example, Government officials and civil society actors have initiated steps to reconsider the country’s drugs laws in order to reduce the record number of executions taking place in Iran. This includes recent measures by the Iranian Parliament to halt executions for non-violent drug offences, which would reduce the country’s use of the death penalty by 65–70 percent. These developments appear to have been inspired by public scrutiny partially driven by the Council’s mandate on the human rights situation in Iran.110 Some organisations have attempted to make qualitative assessments of the impact the current mandate has had on the human rights situation in Iran. For example, in making the case for the mandate’s renewal in 2014, the human rights organisation, Sudwind, noted that Shaheed’s reports and the Government’s responses to those reports have contributed to reigniting a domestic 108 109 110

108 ‘Interactive Dialogue with Special Rapporteur on Iran (Continued): 29th Meeting of the Human Rights Council (22nd Session)’ (un Webcast, 12 March 2013) accessed 22 January 2016. 109 Radio Zamaneh, ‘Iranian Parliament to Investigate Unregulated Detention Centres’ (Payvand, 16 May 2015) accessed 22 January 2016. 110 ‘Iran’s Larijani Slams West’s “Bias” on Human Rights’ (Euronews, 11 July 2014) accessed 30 November 2015; A Karami, ‘Iran Considers Ending Death Penalty for Drug Offences’ (Al-Monitor, 5 December 2014) accessed 4 October 2016; ‘Is un Engagement Having an Impact on Iran’s Human Rights? Absolutely’ (ichri, November 2014) accessed 30 November 2015; ‘More than 150 Members of Iran’s Parliament Call for Ending Execution of Petty Drug Traffickers’ (ichri, 4 October 2016) accessed 4 October 2016.

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discourse on human rights in Iran.111 Of course, the visibility of this work and the ensuing domestic debate in Iran is due, in part, to the activities of the Iranian human rights defenders. A conscious effort on Shaheed’s part to monitor Iran’s observation of its voluntary human rights commitments, in addition to his sustained engagement with Iranian civil society, and his use of media outlets to raise awareness on the human rights situation in the country, may have also contributed to the mandate’s relevance in domestic discourse. Lastly, and perhaps most importantly, the mandate’s approaches to monitoring, documenting and analysing pressing and emerging issues that impact the human rights situation in Iran have generated a substantial amount of information, despite Shaheed’s inability to secure a visit to the country or to establish a sustained dialogue with relevant stakeholders located in Iran. The Special Procedure’s accessibility for Iranians located inside and outside the country has generated information about hundreds of cases of rights violations catalogued in the Annexes of annual reports to Council.112 These cases provide tangible information about detainees and pressing cases of rights violations, and at times, provide a level of protection or relief for victims, including a number of Iranians that have reported that their situation somewhat improved following the presentation of their cases in a Special Procedure report, statement or discussion in un fora. vi

Conclusions and Lessons

The Special Procedures perform a vitally important function in the un’s early warning system. They are often poised to highlight emerging concerns, raise alarm over a situation before it deteriorates and play a significant role in mobilising action for redress. Reports submitted to the United Nations over the past four decades by the Special Procedures represent an empirical account of the most difficult human rights challenges facing humanity and highlight the hurdles over which we have come in pursuit of freedom and basic human dignity. Although the methods employed by mandate holders to compile these  reports and to promote and protect human rights over the years vary 111 112

111 ‘Monitoring Matters: Impact of the Mandate of the Special Rapporteur on the Situation of Human Rights in Iran’ (Sudwind, March 2015) accessed 24 May 2015. See also ‘Is un Engagement Having an Impact’, ibid. 112 See e.g. un Doc A/HRC/25/61 (n 88) Annex.

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considerably, the inhospitable circumstances engendered by state hostility, non-­cooperation, and insufficient resources that frustrate the work of mandate holders is commonplace. Country-specific mandates established to examine rights violations face particularly daunting challenges, because public examination of a country-specific human rights situation is invariably perceived as punitive. Most governments, therefore, will initially reject cooperation in the absence of incentives or significant costs. Where a country is particularly sensitive about its international reputation, various levels of cooperation may be more readily sought. Under these circumstances, making use of third parties to convey informal messages, meeting with official delegations outside a given country in lieu of in-country meetings, highlighting even modest progress, pursuing discreet dialogue, and perhaps opting to undertake limited country visits that seek to advance a narrow agenda can generate dialogue and enough trust between parties to sincerely examine challenges confronting the country concerned. The costs of non-cooperation are negligible for States, but very few countries choose unending reticence as a viable long-term option. Mandate holders must, therefore, seek ways to gather information, engage civil society and enhance the visibility of a country situation in lieu of cooperation, in the hopes that the government concerned eventually chooses to repair their damaged reputation. But these endeavours must not be made at the cost of opportunities for future cooperation. On the contrary, country-specific mandate holders must prioritise cooperation for the simple reason that there is no substitute for a substantive dialogue and a constructive relationship with government officials responsible for realising human rights. Such a relationship better positions mandate holders to persuade stakeholders of the merits of their findings and generates constructive influence on a country-situation. In the case of Iran, the Government refuses to fully cooperate with the country-specific mandate, and dismisses any finding deemed critical of official policies and practices. Shaheed found himself trying to assuage suspicion and fend off hostility and accusations of bias before his work even began. However, non-cooperation did not render his mandate dysfunctional. The flexibility and the versatility with which a country mandate can operate enabled Shaheed to fashion his work in ways that best served to report on the country situation, encourage the Government to engage with the mandate and convince the international community that it should maintain its focus on Iran. Today’s cheap and accessible online applications can, and have, liberated mandate holders from complete dependence on government cooperation to facilitate some of the most important aspects of their work. These tools, along with support from an increasingly sophisticated civil society, establish

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alternative means to country access; they make it easier for individuals to raise complaints, and improve engagement with human rights defenders and a range of experts located inside and outside Iran in order to generate an abundance of tangible facts and credible information on which the international community can engage the Government. Constraints imposed by non-cooperation and politicisation of the Iranrelated Special Procedure also necessitated a delicate balance between the priorities of the mandate. This balance sometimes resulted in trade-offs and setbacks for certain aspects of the Special Procedure’s responsibilities. In an effort to refrain from raising cases or issues deemed disastrous for his emerging relationship with government officials, for example, Shaheed found himself, at times, having to choose private engagement with officials on pressing issues of concern rather than publicly admonishing alarming behaviour. At other times, the need to raise alarm over egregious violations or emerging issues prompted Shaheed to pursue very public activities, like press statements or media interviews that call attention to a case or problem, often to the peril of progress made in building trust. Country-mandate holders must avail themselves of every opportunity to build a constructive relationship with the countries concerned, but building trust is a mutual process. The Council must seek ways to place more emphasis on the reliability of States in fulfilling their obligations to cooperate with the un human rights mechanisms and to protect those that seek to engage them. States must work to strengthen the system by placing a premium on cooperation and respect for these important tools if they are to realise the goals for which they were created.

chapter 7

Doing It All and Doing It Well? A Mandate’s Challenges in Terms of Cooperation, Fundraising and Maintaining Independence Inga T. Winkler and Catarina de Albuquerque Abstract Providing an insiders’ perspective and drawing on the experience of the evolving mandate of the first Special Rapporteur on the human rights to water and sanitation from 2008 to 2014, the chapter addresses three issues that are deeply interwoven and ­influence each other: firstly, the decision to pursue a very active agenda for the mandate, encompassing advocacy directed towards the explicit recognition of the rights to water and sanitation and work focussed on the implementation of the rights in practice; secondly, the role of the Special Procedures and the delicate balance to be struck between preserving their independence and their necessary cooperation with other actors, including States, un organisations and civil society; and, thirdly, the need for external funding for Special Procedures who pursue an agenda as active as that of the water and sanitation mandate – and the challenge such fundraising imposes in terms of Special Procedures’ independence.

Keywords water – sanitation – funding – cooperation – independence

i

Introduction

The Special Procedures are often referred to as the ‘crown jewels’1 of the un ­human rights system. Yet, judging from the regular budgetary resources * The chapter solely reflects the authors’ personal opinions. The authors would like to thank Ioana Cismas, Virginia Roaf, Christiaan van Veen, the editors, and Philip Alston and other participants at the Research Forum convened by the Center for Human Rights & Global Justice at NYU Law School on 6 April 2016 for valuable comments on an earlier draft. The authors would also like to thank Danial Abbasi for his research assistance. 1 Kofi Annan is credited with first using this term: un, ‘Annan Calls on Human Rights Council to Strive for Unity, Avoid Familiar Fault Lines’ (un News Centre, 29 November 2006) © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004304703_009

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a­ llocated to the Special Procedures system, the un seems to consider its crown jewels to be of largely symbolic rather than material value. Providing an insiders’ perspective and drawing on the experience of the mandate of the first Special Rapporteur on the human rights to water and sanitation from 2008 to 2014, the chapter will address three issues that are deeply interwoven and influence each other: firstly, the decision to pursue a very active agenda for the mandate; secondly, the role of the Special Procedures, their independence and the need for cooperation with other actors; and, thirdly, the question of funding. This mandate has been comparatively well-funded, which has provided it with unique opportunities but has also given rise to distinct challenges. The chapter starts by briefly explaining the evolving mandate from ‘Independent Expert on the Issue of Human Rights Obligations Related to Access to Safe Drinking Water and Sanitation’ (as it was named in 2008) to ‘Special Rapporteur on the Right to Safe Drinking Water and Sanitation’ (as it was renamed in 2011) after the explicit recognition of the human right to water and sanitation.2 It details the approach that the Special Rapporteur took to her mandate and its achievements; in particular, it outlines the shift from advocacy for the explicit recognition of the rights to water and sanitation to a much stronger focus on implementation after said recognition, inter alia through close engagement with sector professionals and production of materials aimed at guiding practical implementation of the human rights to water and sanitation. The chapter continues by discussing the independence of Special Procedures and their unique position in the human rights system, but also highlights the need to cooperate with a range of other actors, including States, un organisations, civil society organisations, academic institutions and many other stakeholders. Such cooperation allows mandate holders to increase their work and amplify its impact. In addition to cooperation, the chapter addresses the fact that (external) funding is necessary to pursue an agenda as active as that of the water and sanitation mandate. The funding for the Special Procedures system is insufficient which negatively affects virtually all mandate holders, limiting the effectiveness and impact of their work. While the mandate on water and sanitation was comparatively well-funded, the nature of funding, the priorities of donors,

accessed 29 March 2016. 2 The chapter refers to the mandate holder as Special Rapporteur when it relates to the mandate in general over the entire 6-year period. It uses Independent Expert when it is explicitly focussed on the early period and the status of the mandate as Independent Expert.

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the fact that the mandate holder herself was unpaid, and the potential lack of transparency raised challenges for the independence of the mandate holder and similarly placed Special Procedures. Mandate holders’ independence is often considered their key asset. However, the system itself pushes mandate holders to raise funds (which might threaten their independence). Moreover, mandate holders must avoid the danger of independence turning into isolation and disconnect, resulting in an ‘ivory tower’ approach. These dilemmas result in a delicate balancing act between the need to find cooperation partners and to secure funding to carry out impactful work and avoiding imperilling the mandate’s independence. ii

The Water and Sanitation Mandate in the System of Special Procedures

The mandate on water and sanitation was created in 2008 amidst a trend of growing international attention to socio-economic rights. During the first six years and the tenure of Catarina de Albuquerque as mandate holder it underwent tremendous development. The mandate was created as ‘Independent Expert on the Issue of Human Rights Obligations Related to Access to Safe Drinking Water and Sanitation’3 at a time where there was increasing awareness of water (and sanitation) as a human rights issue,4 but no explicit political recognition of the human right to water and sanitation. In 2010, the un General Assembly (unga) and the un Human Rights Council (hrc) explicitly recognised the human right to water and sanitation.5 Subsequently, the mandate was extended and renamed ‘Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation’.6 While this evolution is unusual and specific to the mandate on water and sanitation, it reflects broader issues and challenges that concern the Special Procedures system as a whole. Mandates have different titles, different forms, 3 un Human Rights Council (unhrc) Res 7/22 (28 March 2008) un Doc A/HRC/RES/7/22. 4 On the process of recognition, see IT Winkler, ‘The Human Right to Sanitation’ University of Pennsylvania Journal of International Law (forthcoming); IT Winkler, The Human Right to Water: Significance, Legal Status and Implications for Water Allocation (Hart Publishing 2012) 71ff. 5 unga Res 64/292 (3 August 2010) un Doc A/RES/64/292; unhrc Res 15/9 (6 October 2010) un Doc A/HRC/RES/15/9. 6 unhrc Res 16/2 (8 April 2011) un Doc A/HRC/RES/16/2, para 4.

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and different tasks and responsibilities listed in the resolutions that create them: there are Independent Experts, Special Rapporteurs, Working Groups,7 and Special Representatives of the Secretary-General as part of the Special Procedures system.8 All of these mandates are Special Procedures. They may have different focus areas and approaches, but in principle they fulfil the same roles.9 Yet, there are differences in the perception of mandates that may pose challenges, in particular for Independent Experts. The focus of the mandates of Independent Experts is sometimes perceived to be more academic with a primary focus on studying certain human rights issues, on providing clarification and advice, and on developing standards.10 This raises questions as to whether Independent Experts are ‘full’ mandates tasked to protect and promote human rights, and whether their mandates include all the tasks that Special Rapporteurs have, specifically country missions and communications.11 A recent report on Special Procedures presents different types of mandates and assigns Independent Experts the role of ‘promotion’ (rather than also protection) with  an emphasis on norm development and promotion (rather than also 7 8

9

10 11

For more on Working Groups, see de Frouville’s contribution to this collection. These Special Representatives of the Secretary-General as part of the system of Special Procedures (such as the mandate of the former Special Representative of the SecretaryGeneral on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises) should not be confused with full-time posts within the un system such as the Special Representative of the Secretary-General on Violence against Children and the Special Representative of the Secretary-General for Children and Armed Conflict. The Manual of Operations adopted by the Special Procedures stresses that ‘there are no major differences in the general responsibilities and methods of work’: see ‘Manual of Operations of the Special Procedures of the Human Rights Council’ (ohchr, August 2008) 6, fn 5 accessed 29 March 2016. unhrc Resolution 5/1 on institution-building considers it ‘desirable to have a uniform nomenclature of mandate holders’: see unhrc Res 5/1 (18 June 2007) un Doc A/HRC/RES/5/1, para 59. For more on the different titles (and the potential implications thereof) for Special Procedures, see Domínguez-Redondo’s contribution to this collection. See O Hoehne, ‘Special Procedures and the New Human Rights Council – A Need for Strategic Positioning’ (2007) 4(1) Essex Human Rights Review 5. There is often a misconception that Independent Experts typically cannot undertake country missions: see e.g. Columbia Law School Human Rights Institute, Engaging u.n. Special Procedures To Advance Human Rights At Home: A Guide For u.s. Advocates (Columbia Law School 2015) 3.

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country visits and communications).12 However, such a categorical distinction is misleading. A comprehensive reading of the resolutions that establish Special Procedures makes possible the distinguishing of typical functions that almost all mandates fulfil and tools that they use. Three broad functions can be distinguished: the protection of human rights, including fact-finding and monitoring the realisation of human rights and violations thereof and responding to alleged violations; standard setting and normative development; and, finally, the promotion of human rights. In the context of promotion, a number of mandates (including the one on water and sanitation) have been tasked with collecting good p ­ ractices in the implementation of human rights13 and with making recommendations on the former Millennium Development Goals14 and now the Sustainable Development Goals.15 The tools that mandate holders have available traditionally include country missions, letters of allegation and urgent appeals, statements and annual thematic reporting to the hrc and the Third Committee of the unga.16 These tools can be used for different functions simultaneously. For example, the Special Rapporteur on water and sanitation has used country missions to identify issues of concern as well as good practices and she also used letters of allegation as a basis for identifying countries for missions.17 In the case of water and sanitation, the original resolution creating the Independent Expert’s mandate listed several tasks including developing dialogue, identifying good practices, and undertaking a study.18 It stressed aspects that relate to promoting human rights and did not explicitly refer to the protection of human rights. When the Independent Expert on water and sanitation took up her mandate in 2008, she regarded country missions as an essential part of her mandate, but had limited clarity as to whether the States in the hrc, which

12 13 14

15 16 17

18

M Limon and T Piccone, Human Rights Special Procedures: Determinants of Influence (Universal Rights Group 2014) 15. unhrc Res 7/22 (n 3). Ibid. See also C Golay, I Biglino and I Truscan, ‘The Contribution of the un Special Procedures to the Human Rights and Development Dialogue’ (2012) 17 sur – International Journal on Human Rights 15, 20. unhrc Res 24/18 (8 October 2013) un Doc A/HRC/RES/24/18. Limon and Piccone (n 12). C de Albuquerque, L O’Hanlon and IT Winkler, ‘Keeping it Relevant, Keeping it Real: The Importance of Fact-Finding Missions for the Realization of Human Rights’ (in preparation). unhrc Res 7/22 (n 3).

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created the mandate, perceived it in the same way. She brought up the issue in an informal exchange with an Egyptian diplomat in Geneva – with Egypt being among the countries that had asked for the mandate to be established as Independent Expert rather than Special Rapporteur – asking about a potential country mission to Egypt. As the delegate agreed to the suggestion, the then Independent Expert interpreted the Egyptian reaction as agreeing with her understanding of country missions as a key part of the mandate and undertook one of her first missions to Egypt,19 followed by more than a dozen further country missions. Many other Independent Experts also undertake regular country visits,20 whereas others choose not to (or only to do so to a very limited extent).21 The particular focus of each mandate and the approaches that mandate holders adopt vary from mandate to mandate. Yet, rather than the title of the mandate, the specific scope of the mandate is more likely to depend on the specific resolution creating the mandate and, most importantly, the interpretation thereof.22 In most cases, it is beneficial for mandates to understand the protection and promotion functions of mandates as a continuum rather than mutually exclusive approaches. At the beginning of her mandate, part of the work of the Special Rapporteur on water and sanitation focussed on advocacy for the explicit recognition of the right to water and sanitation and its normative development. Some of the steps taken to achieve this goal were formal in nature such as the mandate holder’s first report on human rights obligations related to access to sanitation.23 The then Independent Expert stated in her report that there was 19

20 21

22

23

unhrc ‘Report by Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation: Country mission to Egypt’ (5 July 2010) un Doc A/HRC/15/31/Add.3. This includes the mandates on extreme poverty and the environment (when still named Independent Experts), the mandate on cultural rights and the mandate on older persons. This includes for instance the mandate on an equitable international order and the mandate on international solidarity. The Special Representative on business and human rights also chose not to undertake country missions but to focus on the elaboration of frameworks and principles (based on a very specific mandate in the resolution creating the mandate): see un Commission on Human Rights (unchr) Res 2005/69 (20 April 2005) un Doc E/CN.4/RES/2005/69. See J Naples-Mitchell, ‘Perspectives of un Special Rapporteurs on Their Role: Inherent Tensions and Unique Contributions to Human Rights’ (2011) 15 International Journal of Human Rights 232, 234. For other examples of normative developments in the areas of economic, social and cultural rights, see C Golay, C Mahon and I Cismas, ‘The Impact of the un Special Procedures

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an ongoing discussion about sanitation as a distinct right. She [saw] that there is momentum behind this issue, and recent developments in human rights law concerning sanitation suggest a trend towards recognition of such a distinct right. Convinced that there are unique aspects to sanitation that evoke the inherent dignity of all human beings and which make it impossible to address satisfactorily through other human rights, [she] supports and encourages developments in line with this trend.24 The Special Rapporteur also addressed issues that she considered to be obstacles to the recognition of the human rights to water and sanitation.25 For instance, she addressed the role of private sector participation, which has caused significant controversy in the sector, with the aim of providing a balanced view from a human rights perspective.26 More generally, the Special Rapporteur found that it was essential to address misconceptions and rebut myths about the rights to water and sanitation so as to create a common ground that would allow for the rights to be explicitly recognised by the un.27 Other activities the Special Rapporteur undertook in terms of advocacy were more informal in nature. For instance, when Bolivia introduced the resolution that led to the recognition of the human right to water and sanitation in the unga, the Special Rapporteur asked to meet with the Bolivian Permanent Representative in New York. The first draft of the resolution focussed entirely on the human right to water, and the Special Rapporteur suggested broadening

24

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26 27

on the Development and Implementation of Economic, Social and Cultural Rights’ (2011) 15 International Journal of Human Rights 299, 300ff. unhrc ‘Report by Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation: Report on Sanitation’ (1 July 2009) un Doc A/HRC/12/24, para 59, cf also para 81. She identified these issues on the basis of the report by the High Commissioner: see unhrc ‘Report by the un High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments’ (16 August 2007) un Doc A/HRC/6/3. unhrc ‘Report by Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation’ (29 June 2010) un Doc A/HRC/15/31. Golay, Mahon and Cismas (n 23) 302. On the role that providing clarification and dispelling myths has played for the mandate on the right to food, see I Cismas, ‘The Role of the un Special Rapporteur in the Development of the Right to Food: Legitimation through Clarification?’ in M Gestri (ed), Cibo e Direito, Dalla Dichiarazione Universale alla Carta di Milano (Mucchi Editore 2015).

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its scope to include sanitation and provided the Bolivian diplomat with a copy of her first report on sanitation. When introducing the resolution at the unga, the Bolivian Permanent Representative explained the importance of including sanitation, reading from the mandate holder’s report.28 While other stakeholders have certainly played an essential role, some attribute the explicit recognition of the human right to water and sanitation by the unga and the hrc to the clarification process undertaken by the Special Rapporteur.29 In 2010–11, the Special Rapporteur was repeatedly either congratulated or indeed challenged by different stakeholders that her task had been completed with the recognition of the human right to water and sanitation. When replying she usually clarified that her task had only just started.30 She proceeded to shift her activities to a stronger focus on implementation of this newly re­cognised human right. Her general sentiment was to treat the human rights to water and sanitation like any other human rights and she saw their explicit recognition as a starting point for dealing with the actual challenges in their realisation. Throughout her reports, the mandate holder stressed that water and sanitation should be considered two distinct human rights, as two separate components of the right to an adequate standard of living that face distinct challenges in their implementation.31 The Special Rapporteur sought to provide guidance on the realisation of these rights at several different levels. Some of her reports focussed on practical aspects of implementation such as planning processes32 and financing33 28 29 30

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See the statement by Ambassador Solón contained in unga ‘64th Session, 108th plenary meeting’ (28 July 2010) un Doc A/64/PV.108, 5 (agenda item 48). Golay, Mahon and Cismas (n 23) 302. See e.g. Office of the un High Commissioner for Human Rights (ohchr) ‘Special ­Rapporteur on the human right to safe drinking water and sanitation, Ms Catarina de Albuquerque, Human Rights Council, 18th session: Statement’ (ohchr, 15 September 2011) accessed 29 March 2016, where she outlines her vision for moving from the recognition to the implementation of the rights to water and sanitation. To underline the understanding of water and sanitation as two distinct human rights, the Special Rapporteur consistently used the plural (human rights to water and sanitation) in her reports and other writing, except when explicitly referring to the resolutions by the unga and hrc that refer to the ‘human right to safe drinking water and sanitation’ in the singular. See further Winkler (n 4). unhrc ‘Report of the Special Rapporteur on the human right to safe drinking water and sanitation’ (4 July 2011) un Doc A/HRC/18/33. unga ‘Report of the Special Rapporteur on the human right to safe drinking water and sanitation’ (3 August 2011) un Doc A/66/255.

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and the importance of ensuring sustainability and non-retrogression34 as well as participation at all levels.35 A key report was the one on processes of stigmatisation and how these reinforce discrimination and inequalities in the realisation of the human right to sanitation. It contributed to raising awareness of complex socio-cultural norms, stereotypes and processes and how they affect different stigmatised groups and individuals.36 Another more controversial report in the sense that it stressed the protection function of the mandate was her final report to the hrc. It addressed violations of the human rights to water and sanitation, drawing attention to the fact that violations persist on a large scale and providing a complementary perspective to the positive guidance on promoting and implementing human rights on which the Special Rapporteur focussed in many of her other activities.37 Among the mandatory tasks for many Special Procedures is the presentation of two annual reports. The question may well be asked, however, whether such reporting is always the most effective way to fulfil the Special Procedures’ roles and to make the most efficient use of their (limited) time. Some reports have been quite influential, have put issues on the agenda, have provided important clarification, have afforded an impetus for further developments, or have contributed to the promotion and protection of human rights in other significant ways.38 Yet, this cannot be assumed for all reports being submitted to un bodies. Altogether, the hrc considered 207 reports in 2014, prompting questions about whether States and other stakeholders can meaningfully consider these, engage with them, and ideally implement the recommendations they contain.39 In many cases, delegations will focus on the conclusions and recommendations and respond with a rather general statement congratulating the Special Rapporteur  on ‘her important work’.40 In those exceptional circumstances where contentious 34 35 36 37 38 39 40

unhrc ‘Report of the Special Rapporteur on the human right to safe drinking water and sanitation’ (11 July 2013) un Doc A/HRC/24/44. unga ‘Report of the Special Rapporteur on the human right to safe drinking water and sanitation’ (31 July 2014) un Doc A/69/213. unhrc ‘Report of the Special Rapporteur on the human right to safe drinking water and sanitation’ (2 July 2012) un Doc A/HRC/21/42. unhrc ‘Report of the Special Rapporteur on the human right to safe drinking water and sanitation’ (30 June 2014) un Doc A/HRC/27/55. See generally Golay, Mahon and Cismas (n 23). Universal Rights Group, Glion Human Rights Dialogue: The Human Rights Council at 10: Improving Relevance, Strengthening Impact (Versoix 2015) 9. All the statements made by delegations during the Interactive Dialogue are available on the ohchr Extranet.

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subjects are approached in a report – for instance, sexual and reproductive rights – there is a higher likelihood that the whole report will be read and that some critical or constructive remarks will be made by diplomats during the discussion of the report. In the case of the water and sanitation mandate, for instance, the reports on private sector participation and on stigma led to some debate in the hrc.41 From the perspective of the Special Rapporteur, the annual reporting to both the unga and the hrc implied that she could only spend a few months on the conceptualisation, elaboration and drafting of each report. While the ongoing engagement and dialogue between mandate holders and States and other stakeholders in the hrc and the Third Committee of the unga is essential for the way Special Procedures work, one could consider adjustments to the reporting process or Special Rapporteurs could consider using the process in different ways, potentially viewing annual reporting as interim steps in more long-term projects,42 for instance by addressing broad issues around water, sanitation and development in a series of reports. In addition to mandatory reporting, the open-ended nature of the mandates provides mandate holders with a high degree of autonomy and flexibility to engage in other activities that promote and protect human rights.43 For the water and sanitation mandate, this included press releases, op-eds, statements, conference attendance, human rights training, publication of (hand-) books, engagement with different stakeholders, and various activities aimed at raising awareness for human rights. Much of the work by the Special Rapporteur was done in close cooperation with professionals, organisations and agencies in the water and sanitation sector. Her aim was to provide guidance on the implementation of the human rights to water and sanitation and to integrate human rights principles and standards at all levels. To achieve this, she often employed new strategies, innovative

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All statements are available on the ohchr Extranet. The greater controversy around the report on stigma is also reflected in the fact that the hrc Resolution adopted in the session when the Special Rapporteur presented her report does not ‘welcome’ the report but only ‘takes note’ of it: see unhrc Res 21/2 (9 October 2012) un Doc A/HRC/RES/21/2, para 6. Other mandates have already pursued such projects over several years: see e.g. unhrc ‘Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya’ (11 July 2011) un Doc A/HRC/18/35; unhrc ‘Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya’ (6 July 2012) un Doc A/HRC/21/47; unhrc ‘Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya’ (1 July 2013) un Doc A/HRC/24/41. Hoehne (n 10).

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approaches and tools beyond the standard repertoire of the Special Procedures, taking advantage of the flexibility that the mandate offered. She often linked such activities with more traditional modes of action of the Special Procedures. For instance, in addition to a report to the hrc,44 she published a book on good practices in the realisation of the human rights to water and sanitation.45 At the end of her mandate, she also published a handbook that provides guidance on implementation.46 In the development of this handbook, she not only engaged with delegations in Geneva, which is common for the Special Procedures, but also directly with line ministries, local governments, national human rights institutions and regulators as the parts of government responsible for implementation.47 She also used her country missions as a starting point for more long-term engagement. After her mission to the United States in 2011,48 she continued to cooperate with civil society organisations that worked on the human rights to water and sanitation. She provided support to advocacy leading to the adoption of Assembly Bill No 685, the human right to water bill, in California.49 In 2014, in follow-up to a letter of allegation50 and her earlier country mission, she 44 45 46

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unhrc ‘Report of the Special Rapporteur on the human right to safe drinking water and sanitation: Compilation of good practices’ (29 June 2011) un Doc A/HRC/18/33/Add.1. C de Albuquerque with V Roaf, On the Right Track: Good Practices in Realising the Rights to Water and Sanitation (ohchr 2012). C de Albuquerque, ‘Realising the Human Rights to Water and Sanitation: A Handbook by the un Special Rapporteur’ (ohchr, 2014) accessed 29 March 2016. For a full list of organisations and experts involved, see de Albuquerque (n 46) Introduction 6–7. unhrc ‘Report of the Special Rapporteur on the human right to safe drinking water and sanitation: Mission to the United States’ (2 August 2011) un Doc A/HRC/18/33/Add.4. Assembly Bill 685, 2011–12, Ch 524. See Safe Water Alliance, ‘United Nations Calls on State Legislators to Pass Human Right to Water Act (ab 685)’ (Public Health Advocacy, 9 August 2012)  accessed 29 March 2016. Complete letter by the Special Rapporteur on file with the authors. Allegation letter usa 9/2014 in unhrc ‘Communications report of Special Procedures’ (19 February 2015) un Doc A/HRC/28/85. Compared to other Special Procedures, communications have played a relatively minor role in terms of the water and sanitation mandate so far, largely due to time constraints. See Limon and Piccone (n 12) 30, for a comparison with other mandates. On the role of communications in the context of other socio-economic rights, see Golay, Mahon and Cismas (n 23) 307ff. See also T Piccone, ‘The Contribution of the un’s Special Procedures to National Level Implementation of Human Rights Norms’ (2011) 15 International Journal of Human Rights 206, 218ff.

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undertook an informal visit to Detroit at the invitation of civil society to voice her concerns about large-scale water disconnections in the city.51 In terms of country visits, the Special Rapporteur – like many other mandate holders – considered it critically important to establish a balance between regions, between countries in the Global North and the Global South, between developed and developing countries.52 Many expected her to go on country missions to Sub-Saharan Africa, for instance, but she intentionally also paid visits to countries like Japan, Slovenia and the United States and highlighted national issues of concern in her reports, in particular for marginalised groups and individuals. At the global level, the Special Rapporteur was closely engaged in advocacy for the integration of human rights into the Sustainable Development Goals as the successors to the Millennium Development Goals, at the political and diplomatic level, as well as at the technical level. She contributed to sectorwide discussions focussing on integrating equality and non-discrimination in global monitoring in the water and sanitation sector, chaired a working group to develop concrete technical proposals in that context53 and used her annual reports54 to link these issues to ongoing efforts in the human rights community more broadly.55 In all of her activities, the Special Rapporteur considered it essential to consult with as many stakeholders as possible. All country missions she undertook had an official, as well as a non-official segment, the latter being devoted to 51

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ohchr ‘Joint Press Statement by Special Rapporteur on adequate housing as a component of the right to an adequate standard of living and to right to non-discrimination in this context, and Special Rapporteur on the human right to safe drinking water and sanitation, Visit to city of Detroit (United States of America), 18–20 October 2014’ (ohchr, 20 October 2014) accessed 29 March 2016. For more on Special Procedures and country visits, see Gaer’s contribution to this collection. World Health Organization and unicef, ‘Equity and Non-discrimination (end) Working Group’ (who/unicef Joint Monitoring Programme for Water and Sanitation) accessed 29 March 2016. unga ‘Report of the Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation, Catarina de Albuquerque’ (6 August 2010) un Doc A/65/254; unga ‘Report of the Special Rapporteur on the human right to safe drinking water and sanitation’ (8 August 2012) un Doc A/67/270. On the activities undertaken by other mandate holders in this context, see Golay, Biglino and Truscan (n 14).

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meetings and visits with people who do not have access to water and sanitation services, community-based groups and relevant civil society organisations that would show her ‘the other side of the story’. When preparing the handbook on implementing the human rights to water and sanitation, she undertook extensive online consultations as well as regional consultations in Nepal, Kenya and Bolivia.56 For her thematic reports, she usually held a consultation with States as well as an expert consultation.57 Crucially, for the Special Rapporteur, ‘expert’ in that sense not only included renowned scholars and professionals, but, perhaps more importantly, experts who could speak from their experiences – from living in poverty, being a resident in an informal settlement, living with a disability, or being stigmatised on grounds of ethnicity, caste or sexual orientation. The most successful and most lively consultations held by the Special Rapporteur were those that brought together the most diverse groups of people. Holding such consultations is not without challenges that begin at a very practical level: language barriers, visa stipulations, and the un requirement that participants make advance payments for any expenses, only to be reimbursed months later. In most instances, these challenges could be overcome with advance planning, some creative measures and great commitment (to the point where staff members made personal upfront payments to enable participants to attend or picked up participants who had never travelled outside their country of origin from the airport). However, more systemic measures are needed to achieve greater flexibility and to make the un respond to the very real challenges people face in order to allow for the inclusive participation that the organisation promotes. All in all, the Special Rapporteur pursued an active agenda for her mandate, and its successful implementation largely relied on two factors: cooperation with other stakeholders and funding. These will be discussed in turn in the following sections. iii

The Role of Special Procedures: Independence and Cooperation

The description of the Special Procedures as the ‘crown jewels’58 of the un human rights system referred to earlier reflects the status they have achieved 56 57

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For details on these consultations, see de Albuquerque (n 46) Introduction 6–7. For details on these consultations, e.g. for the report on stigma, see ‘Stigmatization in the realization of the rights to water and sanitation’ (ohchr) accessed 29 March 2016. un (n 1).

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and the legitimacy they have in the public eye. This legitimacy is based on a number of factors, including their appointment by the hrc, their reputation and visibility, and specific mandate holders’ expertise and experience, personal integrity and diplomatic skills. In addition, the independence of mandate holders plays a crucial role in corroborating their legitimacy.59 Special Procedures are independent from States, from un organisations, from civil society and any other stakeholders. In principle, all their choices are based on their own priorities. They set their own agenda. The Code of Conduct for Special Procedures explicitly states that mandate holders shall ‘[n]either seek nor accept instructions from any Government, individual, governmental or non-governmental organization or pressure group whatsoever’.60 Their independence is their great strength, but at times it leads to unrealistic expectations. One former Special Rapporteur described it in the following way: ‘a special rapporteur is expected simultaneously to become a human rights activist, a rallying point for human rights, an international diplomat, an academic, and a government adviser’.61 In principle, Special Rapporteurs can be all of that, but realistically they can only do as much as a one-woman-show or one-man-show allows for. In many instances, mandate holders will cooperate with other stakeholders to advance their goals: from un organisations and civil society organisations to States themselves as those actors that are primarily responsible for the realisation of human rights. They work together with all parties that contribute to the realisation of human rights.62 It can be challenging to maintain independence in the context of cooperation arrangements, but without the support of other (larger) organisations, entities and mechanisms, the impact of a single mandate holder would be very limited. A Relations with States Special Procedures are a system created by the hrc, a body made up by un Member States, designed to hold States accountable for the realisation of 59 60

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R Smith, ‘The Possibilities of an Independent Special Rapporteur Scheme’ (2011) 15 International Journal of Human Rights 172, 173. unhrc Res 5/2, ‘Code of Conduct for Special Procedures Mandate holders of the Human Rights Council’ (18 June 2007) un Doc A/HRC/RES/5/2, annex, art 3(f) (‘Code of Conduct’). S Subedi, ‘Protection of Human Rights through the Mechanism of un Special Rapporteurs’ (2011) 33 Human Rights Quarterly 201, 212. P Pinheiro, ‘Being a Special Rapporteur: A Delicate Balancing Act’ (2011) 15 International Journal of Human Rights 162, 166.

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human rights. States are the primary duty-bearers for the realisation of human rights, and the very purpose of Special Procedures includes their protection mandate: to monitor the realisation of human rights, identify and respond to violations, and evaluate a State’s human rights record. This dual role of States in relation to the Special Procedures as creators and targets of the system results in inherent tensions. To fulfil their tasks, mandate holders rely on access to, interaction and cooperation with States.63 At times, States try to curtail mandate holders’ ability to fulfil their role. The Code of Conduct for mandate holders developed by States (and as such distinct from the Manual of Operations that mandate holders developed themselves) must be seen in this context.64 Generally, the Code of Conduct stresses that mandate holders have absolute independence, but that they are also bound by ‘their prerogatives, as circumscribed by their mandate’,65 that is, mandate holders should not overstep their mandate. For example, during the first years, the resolutions on the mandate on water and sanitation explicitly excluded addressing issues related to transboundary waters, thereby indicating that these fell outside the mandate’s scope.66 As a result of the role States play and the procedural rules they have put in place, Raquel Rolnik, the former Special Rapporteur on adequate housing, went as far as to state: ‘it is in my view a totally controlled system. It is a system designed to be ineffective’.67 Others stress the role of diplomacy in navigating these tensions: maintaining the integrity of their mandate while using the direct access to States to their benefit, which is the unique position of Special Procedures and distinguishes them from many other human rights advocates 63 64

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Naples-Mitchell (n 22) 233; Pinheiro (n 62) 166. For more details on the Code of Conduct, its rationale and implications, see T Piccone, Catalysts for Change: How the u.n.’s Independent Experts Promote Human Rights (Brookings Institution Press 2012) 86ff. On the Code of Conduct, the accountability of mandate holders themselves and a potential compliance committee, see P Alston, ‘Hobbling the Monitors: Should un Human Rights Monitors be Accountable?’ (2011) 52 Harvard International Law Journal 563. See also the contributions of Limon and Domínguez Redondo to this collection. Code of Conduct (n 60) preamble. On the responsibilities of mandate holders, see N Rodley, ‘On the Responsibility of Special Rapporteurs’ (2011) 15 International Journal of Human Rights 319. See originally unhrc Res 7/22 (n 3) and subsequent resolutions. The approach to transboundary water resources changed in 2013 with unhrc Res 24/18 (n 15). Interview with Raquel Rolnik, ‘un Special Procedures System is “Designed to be Ineffective”’ (2014) 20 sur – International Journal on Human Rights 81, 84.

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including nongovernmental organisations. Pinheiro, who held different un mandates, described this delicate role: ‘On one side the rapporteur’s supposed to reform, to report about the human rights violations. But on the other hand, always, you have to engage with the government because if you are not able to talk to the government, there is no meaning’.68 Given the relationship with and access to States, the Special Rapporteur on water and sanitation was in a unique position that is quite distinct from that of a pure monitor or watchdog. On the other hand, the Special Rapporteur did not see the mandate as merely a provider of technical assistance that would guide or advise States on the realisation of human rights. The system is unique in combining these two functions. The Special Rapporteur considered States primarily as partners, not as adversaries. Even in the context of ‘protecting’ human rights, States are partners in the implementation of human rights through constructive relationships and dialogue.69 The purpose and potential of Special Procedures is to prompt change and influence state decision-making – this is only possible if governments cooperate and are willing to change. A ‘tabula rasa’ approach might make headlines, but will rarely lead to significant reforms at the national level that will ensure a better protection of people’s human rights. In most cases, the Special Rapporteur has worked to keep communication channels open with government representatives rather than burning bridges. In cases where Special Procedure mandate holders do take the decision to burn bridges, the pros and cons of such a decision should be carefully assessed to make sure that it is not just about ‘making a point’ but contributes to making a diffeence in the longterm. B Relations with the un The Special Procedures share a unique relationship with the un. They are part of the broader un system, which gives visibility and weight to their work, but are independent from the actual organisation and its agencies and programmes.70 Mandate holders are not un employees and are not integrated into the un hierarchy, which would otherwise make them ultimately accountable to the un Secretary-General. Similar to their relationship with States, this results in an inherent tension – this time between their status as independent experts and being affiliated with the un.71

68 69 70 71

Quoted in Naples-Mitchell (n 22) 239. Limon and Piccone (n 12) 16. Smith (n 59) 175. Naples-Mitchell (n 22) 232; Piccone (n 64) 45.

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Mandate holders work, travel and write under the auspices of the un.72 They can use un communication channels (for example, to send out official notes verbales). Still, they are independent from the un as such, and only speak for themselves. They have the opportunity to adopt views that are different from the un itself or even to criticise the un.73 Within the un, Special Procedures have the most direct relationship with the Office of the un High Commissioner for Human Rights (ohchr). As will be discussed further below, the regular funding Special Procedures receive is channelled through ohchr. The Special Procedures Branch in ohchr is explicitly mandated to support and advise mandate holders with ‘thematic, fact-finding, policy and legal expertise, research and analytical work, and administrative and logistical services’.74 ohchr staff brings significant experience with the Special Procedures system as a whole, has significant expertise in human rights and provides invaluable support without which the mandates could not function. Still, even in Special Procedures’ relationship with ohchr the tension between independence and un affiliation comes to the fore. For instance, mandate holders are not involved in decisions on personnel; they do not select their staff and they are not formally the supervisors of the staff allocated to them. At times, staff may not have specialised thematic expertise in the area of the mandate. Other issues seem technical at first instance, but these may ultimately operate to infringe on mandate holders’ autonomy. Special Procedures are responsible for their reports and – subject to the prerogatives of their mandates – they are independent in voicing their views. However, un staff edit these reports, and in the case of reports to the unga, mandate holders do not have the opportunity to double-check the edits made. At times, this has resulted in substantive changes and errors being introduced into reports by the Special Rapporteur. In other instances, ohchr staff place a strong emphasis on guarding the positive relationships with States by upholding the Code of Conduct.75 They may seek to anticipate potential criticism by States and address it in advance by advising mandate holders to soften statements or reports. In this regard, there is a delicate line between advising mandate holders based on the 72 73 74 75

Naples-Mitchell (n 22) 234. See e.g. Allegation letter hti 3/2014 in unhrc ‘Communications report of Special Procedures’ (19 February 2015) un Doc A/HRC/28/85. Manual of Operations (n 9) para 21. See generally Piccone (n 50) 210.

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experience of the un human rights system as a whole and unduly restricting mandate holders in pursuing the priorities and approaches they have chosen for their mandates. The relationship with other un organisations, agencies and funds can also be complex. The Special Rapporteur on water and sanitation closely engaged with many organisations, including becoming a partner with special status of UN-Water (the un coordinating body for water), working with the un Children’s Fund (unicef) and UN-Habitat in the elaboration of her handbook, and frequently relying on the support of unicef and un Development Programme (undp) country offices in the preparation and undertaking of country missions. Such cooperation was not always straightforward. Many organisations work on human rights, but fulfil a different role by promoting the realisation of human rights, without holding governments accountable. In some instances, un agencies were sceptical about engaging with the Special Rapporteur, fearing that it might damage the relationship that those agencies had with the government of the respective country. In some instances, this scepticism and fear resulted in un agencies advising the Special Rapporteur to delete some of the criticism directed at governments from her reports. On the other hand, many agencies were very supportive of the Special Rapporteur’s work, specifically its promotional aspects, and provided funding, an issue that will be explored below in more detail. C Relations between Mandates in the Special Procedures System The Special Procedures system has recently seen an exponential increase in the creation of mandates. Compared to three thematic mandates in 1985, at the time of writing there were 41, and an additional 14 country mandates. The area of economic, social and cultural rights has received increased attention, with the first mandate (on education) only created in 1998.76 At the time of writing there are around 10 mandates related to economic, social and cultural rights.77 While socio-economic rights advocates and researchers certainly welcome the increased attention to economic, social and cultural rights, and the growth

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unchr Res 1998/33 (17 April 1998) un Doc E/CN.4/RES/1998/33. Some mandates deal with specific rights, including education, health, food, housing, water and sanitation, and cultural rights, others are concerned with broader human rights concerns including the environment, toxic waste, extreme poverty, and foreign debt. These relate to economic, social and cultural rights but also all other human rights. For more on this point, see Connors’ contribution to this collection.

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in the number of mandates puts additional issues on the human rights agenda, it is not without challenges.78 The coordination and cooperation between mandates is one such challenge, which increases with the ever larger number of mandates. The role of the Special Procedures Branch in ohchr is to support all mandates, which has the potential to support coordination between mandates. Another important mechanism is the Annual Meeting of Special Procedures. This, with the establishment of the Coordination Committee of Special Procedures, brings together mandate holders and allows them to discuss how to approach recurring problems, including questions related to funding, and to coordinate their activities.79 In recent years, there has been increased cooperation between mandates, in particular in the context of joint communications and joint statements80 as well as joint country missions on a more limited scale.81 Despite this support and these mechanisms, cooperation remains a challenge. All mandate holders are independent, they are based in different parts of the world, they develop their own agendas and priorities, they have limited time to devote to the mandate (as their work is of a pro bono nature), and some of them have external teams to support their work. The independence of the Special Procedures is their strength. Yet, when looking at the Special Procedures as a system, it also results in coordination being a challenge. The starting point for increased coordination is exchange of information between mandate holders, not only on completed projects and outputs, but also on ongoing processes. The regular mailings and newsletters by ohchr as well as the Intranet for mandate holders serve an important purpose in that regard. Likewise, the fact that all support staff are physically present at the

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For proposed criteria on reviewing existing mandates and potentially reducing the number of mandates, see H Hannum, ‘Reforming the Special Procedures and Mechanisms of the Commission on Human Rights’ (2007) 7 Human Rights Law Review 73, 79ff. J Gutter, ‘Special Procedures and the Human Rights Council: Achievements and Challenges Ahead’ (2007) 7 Human Rights Law Review 93, 100. For more on the Coordination Committee, see M’jid’s contribution to this volume. Universal Rights Group (n 39) 7. For instance, the Independent Expert on water and sanitation undertook a joint country mission to Bangladesh with the Independent Expert on extreme poverty and human rights: unhrc ‘Joint report of the independent expert on the question of human rights and extreme poverty, Magdalena Sepúlveda Carmona, and the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation, Catarina de Albuquerque: Mission to Bangladesh’ (22 July 2010) un Doc A/HRC/15/55.

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ohchr helps with coordination (while it remains difficult due to the lack of a sufficient number of staff and frequent staff turnover). Usually, mandate holders seek to build on previous relevant work by other mandates, with the water and sanitation mandate drawing on the previous report on participation by the Special Rapporteur on Extreme Poverty and Human Rights, for instance.82 Key to strengthening the system as a whole is striking the right balance between joint actions of a large number of mandate holders to bolster the perception of acting as a system as a whole83 and independent actions of mandate holders that stress the specificities of the particular human rights concerns they seek to address in depth. In particular where cross-cutting concerns such as addressing inequalities are at stake, joint actions can be very powerful. Human rights instruments and the Code of Conduct stress that all human rights are ‘indivisible, interrelated, interdependent and mutually reinforcing’.84 Yet, mandate holders are not encouraged to address the interrelated and interdependent nature of ‘their human right’ with other human rights. The Code of Conduct stipulates that ‘[i]t is incumbent on the mandate holders to exercise their functions in strict observance of their mandate and in particular to ensure that their recommendations do not exceed their mandate […]’.85 As a result, on more than one occasion, the Special Rapporteur on water and sanitation experienced pushback when seeking to make more general recommendations and to link water and sanitation to broader human rights concerns. For instance, in the context of her report on stigma, she considered it necessary to stress the devastating nature of processes of stigmatisation and marginalisation that usually affect individuals in all aspects of their lives, but was advised to focus more strictly on the impact on access to water and sanitation. She was also advised by some un Member States not to address sexual orientation and gender identity in the context of stigma. Obviously, mandate holders should focus on their specific mandate rather than addressing issues 82

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unhrc ‘Report of the Special Rapporteur on extreme poverty and human rights, Magdalena Sepúlveda Carmona’ (11 March 2013) un Doc A/HRC/23/36. Similarly, the Special Rapporteur invited other mandate holders to consultations she convened on several occasions. See e.g. ohchr ‘Statement by 17 Special Procedures mandate-holders of the Human Rights Council on the Post-2015 development agenda’ (ohchr, 21 May 2013) accessed 29 March 2016. See also Universal Rights Group (n 39) 7. Code of Conduct (n 60) preamble. Code of Conduct (n 60) art 7.

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that fall into the remit of other Special Procedures. However, they should also be able to address cross-cutting human rights concerns. Otherwise, there is a danger of a siloed approach that fails to address human rights concerns holistically. Relations and Cooperation with Civil Society Organisations, Academic Institutions and the Media Apart from States and the un, working with civil society organisations, national human rights institutions, academic institutions and the media was key for the water and sanitation mandate. In this regard, despite all of the activities undertaken by the mandate, the demands and expectations were always even greater. ‘Saying no’ was one of the great challenges for the Special Rapporteur on water and sanitation. The significant legitimacy that Special Procedures have in the eyes of the public creates great opportunities for Special Procedures to lend their support to certain initiatives, and it also creates expectations that cannot always be met. At times, organisations were keen to cooperate very closely or enter into joint projects or campaigns. However, due to their independence and unique status Special Procedures do not usually sign on to open letters or statements issued by coalitions of different organisations. What they can do and have done successfully, though, is support such efforts, raise the profile of ongoing efforts and activities, lend more visibility, and provide a forum for bringing people’s voices to the un. For instance, when the Special Rapporteur was approached to become an official Ambassador for the European Right2Water campaign, she opted instead to write a letter of support that outlined her position on the campaign in the framework of human rights.86

D

E Role of Cooperation in Follow-up to Recommendations Follow-up may be the greatest challenge for Special Procedures87 – and the area where cooperation with other organisations may be most beneficial. Currently, the lack of follow-up to recommendations (set out in thematic reports and country reports) as well as to letters of allegation is a major weakness,88 which is largely due to time constraints and limited capacity. 86

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Letter by the un Special Rapporteur, Catarina de Albuquerque, 10 October 2012 accessed 29 March 2016. B Ramcharan, The Protection Roles of un Human Rights Special Procedures (Brill/Nijhoff 2009) 176; Piccone (n 64) 99. Subedi (n 61) 216.

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The starting point for the implementation of recommendations and any potential follow-up is the Interactive Dialogue in the hrc (or the Third Committee of the unga), and it demonstrates the difficulties for meaningful follow-up from the outset. The word ‘dialogue’ implies interaction. Ironically, the need to underline the interactive element of the dialogue may imply that no one expects it to be truly interactive. It is very formal and very limited time is allocated. As a result, it usually consists of hurrying through a drafted statement, States reading out pre-drafted comments and asking a few questions, to which the Special Rapporteur cannot respond in a meaningful way due to time constraints. While the Special Rapporteur took steps, including issuing detailed, written answers to all questions asked during the Interactive Dialogue in the form of a note verbale,89 the current format does not invite any real dialogue that could prove to be a starting point for putting recommendations into practice. Still, different mandates have used different approaches to follow-up. For country missions, follow-up can take various forms90 including explicit followup missions by the mandate holder or alternatively follow-up reports based on information received from civil society and other stakeholders in the country. Very few mandate holders issue formal follow-up reports on earlier country missions.91 In the case of the water and sanitation mandate, some countries where the Rapporteur had been on mission, including Slovenia and Uruguay, decided to take the initiative of preparing an oral and written update on progress made in implementing the recommendations issued during those country missions. Other possibilities are more strongly reliant on the involvement of other actors, whether ohchr field offices, offices of other un organisations or agencies such as undp or unicef or the un Country Teams, national human rights institutions or civil society organisations. Such follow-up is most likely to happen where the relevant national and local actors have already been involved prior to and during the country missions and feel that the recommendations issued by the Special Rapporteur represent their concerns. For example, in the United States, the Special Rapporteur remained engaged with civil society organisations well after her country mission and her

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See answers to questions raised in Interactive Dialogues available at ohchr ‘Annual reports’ in the third column (ohchr) accessed 29 March 2016. Golay, Mahon and Cismas (n 23) 311; Universal Rights Group (n 39) 14; Piccone (n 50) 218. Universal Rights Group (n 39) 5.

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recommendations have been reiterated on several occasions, including in discussions on affordability of water and sanitation services in many us cities.92 Similarly, in Kenya, the network of water and sanitation nongovernmental organisations, kewasnet, has used the recommendations and the new Kenyan Constitution to support demands for local government to recognise and act upon the human rights to water and sanitation. Another idea emerged from discussions of the mandate holder with the Chair of UN-Water who expressed interest in providing follow-up to recommendations in select countries. In all her activities the Special Rapporteur has found that the impact of her work, and the amplification and sustainability of such impacts, has been facilitated to a large extent by the cooperation with other organisations, networks and institutions. At the same time, the opportunity of undertaking such work, including in cooperation with others, depends on adequate funding, which presents a major challenge for the Special Procedures and will be discussed in the next section. iv

The Funding of Special Procedures: Challenges and Opportunities

Special Procedures face high expectations, but they work on a voluntary basis with limited support. Many of the challenges that mandates face are related to funding – or rather the lack thereof. The Special Procedures system has evolved organically in response to certain (perceived) needs to address particular human rights challenges; there was no singular decision to create a coherent system.93 Likewise, there is no comprehensive decision on funding. Mandate holders are expected to make it work, which either means they end up working with very limited resources or they engage in additional fundraising. This latter approach is the one that the Special Rapporteur on water and sanitation decided to take. As a result, the difficulties of funding relate not only to the amounts of funding that mandate holders are able to raise. Successful fundraising brings its own challenges, including organisational issues of how to allocate and channel funding, as well as challenges that go to the heart of the Special Procedures system. Most substantively, the question of funding is deeply intertwined with the independence of mandate holders.

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See Columbia Law School Human Rights Institute (n 11), in particular the case studies it includes. For more on the evolution of the Special Procedures system, see Domínguez-Redondo’s contribution to this collection.

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A Overview of Funding for the Water and Sanitation Mandate Generally, there are three main sources of funding for many Special Procedures: regular funding allocated through ohchr, earmarked funding within ohchr, and external funding outside of ohchr.94 The water and sanitation mandate benefitted from all three types of funding. With the funding she raised, the Special Rapporteur was able to expand the team to support her in ohchr (at times with two to three full-time staff members, including a J­unior Professional Officer95) and to build a team of external advisors, research assistants, interns and consultants. This team was based in different institutions and at times across continents.96 Most of the activities undertaken by the ­Special Rapporteur, including a third country mission per year (in addition to the two missions that are regularly funded), the extensive consultative processes, and activities outside of the regular tasks such as the development of two books, would not have been possible without additional funding. The primary source of funding is the regular support all mandates receive through ohchr. This funding is woefully inadequate. Generally, funding for human rights work in the un system is clearly insufficient. It receives about 3 per cent of regular budget allocations (compared to about 24 per cent for security and about 20 per cent for development as the other two pillars of the un system).97 As for the Special Procedures specifically, they received 12.6 per cent of the overall human rights funding in 2012, which translated to about $10 million.98 While the level of institutional support through ohchr has increased dramatically compared to the early days of the Special Procedures, the regular budget only allows for one staff member per mandate.99 The increase in mandates puts an additional strain on ohchr as its increase in funding has not been commensurate.100 Often, a single staff member has to cover two mandates, and some mandates have very limited support. Special Procedures cannot function adequately without funding. When States create

94 95

Limon and Piccone (n 12) 21. Junior Professional Officers are positions funded by a un Member State, usually for a period of two to three years. The water and sanitation mandate was supported by Junior Professional Officers from Germany and Spain. 96 In addition to the Special Rapporteur being based in Lisbon and ohchr staff in Geneva, the team was largely based in Berlin, but at times also in Berkeley and in New York. 97 Universal Rights Group, Glion Human Rights Dialogue: Reflections on the Future of the un Human Rights Pillar (Versoix 2014) 2. 98 Limon and Piccone (n 12) 20. 99 Naples-Mitchell (n 22) 242. 100 Naples-Mitchell (n 22) 241; Pinheiro (n 62) 168.

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mandates and entrust them with certain tasks, this should be accompanied by adequate funding. All mandated activities should be funded from the regular budget. This implies that resolutions creating or renewing Special Procedures ­mandates need to be accompanied by a statement of programme budget implications (pbi), which sets out the budgetary implications of the mandate’s activities and has to be adopted by the unga’s Fifth Committee.101 In the past, sponsors of resolutions creating mandates all too often attached ‘pro forma pbis’ because agreements on the political level are easier to reach when budgetary implications are excluded. Such ‘pro forma pbis’ were based on the assumption that business will continue as usual, providing mandate holders with a budget for two country missions and necessary trips to Geneva and New York, but no additional activities.102 The mandate of the Independent Expert on water and sanitation was one of the first new mandates created by the hrc. At the time it was exceptional in the sense that it had a pbi attached foreseeing, inter alia, funding for hosting expert consultations and for consultant services.103 This heralded a trend among newer mandates created by the hrc to include pbis foreseeing more extensive activities – alongside greater transparency, with most of the pbis published on the hrc Extranet.104 In addition to the regular funding that is distributed among all mandates, many mandates also receive earmarked funding that is either earmarked for a specific area of work or a specific mandate. The regular support through ohchr can be expanded through such funding. Such funding often comes from main sponsors of the mandate, as countries choose to support issues that are politically high on their agenda.105 The mandate on water and sanitation received earmarked funding from Spain and Germany.106 101 For more on pbis, see Connors’ contribution to this collection. 102 For instance, the pbi attached to the resolution creating the mandate of the Special Rapporteur on contemporary forms of slavery is very limited and does not even foresee ongoing support through a staff member. Available on the hrc Extranet. 103 At the time of writing, the pbi for the mandate on the right to water and sanitation had not yet been uploaded to the hrc Extranet. It is, however, on file with the authors. 104 For instance, the pbi for the mandate of the Special Rapporteur on the right to privacy in the digital age includes funding for more extensive activities. Available on the hrc Extranet. 105 Piccone (n 64) 49. 106 Overall, Spain provided over US$1 million in earmarked funding, which was used for staff in ohchr (including a senior P4 position), a third country mission per year, and organising consultations. Germany provided a combination of earmarked funding in ohchr, in particular for the development of the handbook, and continuous support through ­external funding, which was managed by the German Institute for Human Rights (see

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Apart from funding via ohchr, the Special Rapporteur on water and sanitation also made use of significant funding outside of ohchr. One of the main challenges that Special Procedures face is how to channel such funding. The mandates themselves have no legal personality, they are not organisations that could receive funding. Many mandate holders affiliated with a university use a university centre to receive and manage funds.107 The Special Rapporteur on water and sanitation cooperated with the German Institute for Human Rights, which managed funds she received from the German Foreign Office and ­UN-Habitat and employed one (and, at times, two) of her advisors. Other funding, including from the Swiss Development Cooperation agency, was managed through a small nongovernmental organisation in Portugal founded by the Special Rapporteur. Finland, France, the Netherlands, unicef, the Water Supply and Sanitation Collaborative Council, the Portuguese Water and Waste Services Regulation Authority and the World Water Council also contributed funding. In all instances, managing the funding proved cumbersome; it is very time-consuming to approach, follow up and engage with (potential) donors, and the varying requirements for grant proposals and reporting add to the burden of fundraising. However, the advantage of having external funding compared to funding within ohchr is that mandate holders have more flexibility with regard to how to use and spend the funding, they can make their own decisions on hiring staff to advise and support them in line with their priorities and approaches, they can supervise such staff directly, and can usually achieve more for the same amount of money. Still, there are tasks, including those related to letters of allegations, urgent appeals, country missions and communications with governments, which need to be handled through ohchr as they rely on official communications and are often politically sensitive. External funding cannot make up for the insufficiency in funding ohchr internally in this regard. B The Unpaid Nature of the Position of the Mandate Holder An additional challenge in terms of financing stems from the fact that the position of the mandate holder herself is unpaid. Mandate holders are reimbursed for their expenses but do not receive a compensation for time spent on the mandate. The Code of Conduct explicitly holds that mandate holders must ‘[n]ot accept any honour, decoration, favour, gift or remuneration from any

below). Switzerland contributed over US$200,000 to finance the Special Rapporteur’s handbook. 107 Rolnik (n 67) 86.

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governmental or non-governmental source for activities carried out in pursuit of his/her mandate’.108 For many mandate holders this severely limits the time they are able to spend on the mandate because they have a regular job. Indirectly, the unpaid nature of the positions has a significant influence on the occupational background of mandate holders. In 2014, more than half of the mandates were held by academics.109 Another relatively large proportion (23 per cent) worked for civil society organisations or national human rights institutions.110 Due to the constraints mandate holders face, the idea of engaging mandate holders on a full-time and paid basis has been put forward repeatedly.111 Presumably, the unpaid nature of the mandates is meant to assure their independence. However, it is questionable whether paying mandate holders an honorarium that would allow them to focus on their duties would compromise their independence. On the contrary, fulfilling the functions of the mandate and concurrently working for another organisation or undertaking consulting work may at times have an influence on the mandate holder’s activities and views. At the very least, it often obscures whether mandate holders speak on behalf of the organisation they work for or in their capacity as Special Rapporteur. There are other mandates in the un system such as the mandate of the Special Representative of the Secretary-General on Violence against Children and the Special Representative of the Secretary-General for Children and Armed Conflict that are full-time paid posts at the level of an Assistant Secretary-General based in New York, that are also of an individualised nature and focus on rather narrowly defined topics.112 Radhika Coomaraswamy, who has held positions both as Special Rapporteur on Violence Against Women (in the Special Procedures system) and as Special Representative of the Secretary-General for Children and Armed Conflict, argues that the latter position is less independent and more restricted because of serving under the Secretary-General, which makes the position more political and requires a more diplomatic approach.113 Still, some aspects of the Special Representative positions could serve as model for providing compensation to mandate 108 109 110 111

Code of Conduct (n 60) art 3(j). Limon and Piccone (n 12) 13. Ibid 14. See e.g. M Limon and H Power, History of the United Nations Special Procedures Mechanism: Origins, Evolution and Reform (Universal Rights Group 2014) 15. 112 Naples-Mitchell (n 22) 236. 113 Quoted ibid 236.

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holders. Another comparable position to Special Procedure mandate holders in the un system is that of members of the International Law Commission who serve on a part-time basis and are meant to receive a special allowance (in addition to reimbursement of expenses).114 An allowance for Special Rapporteurs could be introduced in the form of compensation for the time dedicated to the mandate115 and could be administered through ohchr in a similar way as current reimbursement for expenses and the payment of per diems during missions are. Receiving compensation does not per se mean that mandate holders cannot uphold their independence. However, it would have to be ensured that mandate holders continue to work in their personal capacity – if they were to become regular un employees, the Special Procedures system would likely lose its flexibility and independence, and as a consequence, its strength. If ensuring independence is only part of the reason for the unpaid nature of the Special Procedures mandates, and their independence could be ensured even if mandate holders were paid, it begs the question why the positions are not funded. If the mandates were fully-funded positions, Special Procedures would be able to fully devote their time and energy to the tasks of their mandate. As outlined above, the very States whose human rights records are to be assessed by the Special Procedures create the system of Special Procedures and determine its terms of operation, including its funding. One of the reasons for the unfunded nature of the system might well be that States do not want mandates to function more efficiently. C Disparities in Financial Support for Different Mandates For the mandates that receive earmarked and/or external funding, this has obvious advantages in increasing their capacity, but the practice raises questions in terms of equitable allocation of resources between mandates.116 The extent to which mandate holders are able to secure additional funding to support their mandates often depends on the States that sponsor the resolutions on the mandate and their commitment to the mandate. The States 114 Art 13 Statute of the International Law Commission (unga Res 174 (ii) (21 November 1947) as amended). It should be noted that the special allowance has not been paid for several years, due to budgetary constraints. See unga Res 56/272, ‘Comprehensive study of the question of honorariums payable to members of organs and subsidiary organs of the United Nations’ (23 April 2002) un Doc A/RES/56/272. However, the provision of special allowances illustrates the point that such payments to independent experts are not perceived as compromising their independence. 115 Limon and Piccone (n 12) 13. 116 Piccone (n 64) 49.

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that propose and sponsor the mandate are usually the first potential source of funding. Often mandates sponsored by western governments or mandate holders from the Global North succeed in getting support from governments, foundations or universities.117 In the case of water and sanitation, Spain and Germany as the main sponsors of the mandate, together with other additional donors, supported the mandate significantly. As a result of differences in commitment and capacity among States who sponsor different mandates, the funding that is available to mandate holders varies widely. Some mandates that were created by countries in the Global South do not receive funding from the States sponsoring them, or any other earmarked or external support. Other considerations also influence funding of Special Procedures’ activities: some topics are of greater interest to potential donors or more topical than others. For instance, there has been a lot of interest among donors in funding activities related to climate change in the last few years, including Special Procedures’ work in this area. Anecdotally, it appears that some mandates have historically had difficulties in securing funding from other sources and have no funding in addition to the regular support through ohchr. As a result, there are great disparities between mandates and the financing they have available to carry out their activities. One idea would be to reduce earmarked funding for specific mandates, establishing a floor of funding for each mandate in ohchr and an additional fund that mandate holders can apply to for special projects that go beyond the regular activities.118 If funding were distributed more evenly (and if, in addition, mandate holders were reimbursed for the time spent on their mandate), this would create more opportunities for joint activities with other mandate holders and as such strengthen the Special Procedures as a system. D External Funding as Compromising Independence? Apart from the disparities between funding for different mandates, there is a risk that external funding may undermine or be perceived to undermine the independence of mandate holders.119 It may create a perception of bias, and it may result in conflicts of interest. This applies to external funding as well as to earmarked funding.120 Even though funding has been a challenge for years, mandate holders have been given no guidance or support with regard to fundraising. The Manual of 117 118 119 120

Naples-Mitchell (n 22) 242; Subedi (n 61) 218; Golay, Mahon and Cismas (n 23) 309. Piccone (n 64) 51–52. Subedi (n 61) 218. Limon and Piccone (n 12) 21.

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Operations of Special Procedures points out that the Special Procedures’ ‘independence is […] in no way inconsistent with mandate-holders right […] to seek […] financial and other support from a wide range of actors’.121 Apart from this statement, the Manual does not include any guidance on external fundraising. Mandate holders are largely left alone in their fundraising efforts and have to make their own decisions on what funding to accept. While they may develop some internal criteria, in the end they largely rely on their ‘gut feeling’. Should mandates accept funding from States with an abysmal human rights record, or from ones with potentially a positive human rights record in the field of the relevant mandate but with evidence of massive human rights violations in other areas? And given that virtually all States face challenges in some areas, what human rights record would be good enough? Would not even donors with a largely positive human rights record potentially exercise undue influence in terms of determining priorities for the mandate? Apart from States, is it appropriate for mandates to accept support from international organisations? From philanthropic foundations? Funding or in-kind contributions from nongovernmental organisations? Funding from the private sector? The concern about external funding compromising independence is advanced with different motivations and raises different questions that should be disentangled. One question is whether States that fund certain mandates have undue influence in supporting these mandates and raising their profile by enabling mandate holders to expand their work through additional funding. This question closely relates to the inequitable sharing of resources between mandates as other mandates do not receive such funding. In the case of the water and sanitation mandate, Spain and Germany (among others) had an interest in enabling the mandate to produce extensive and high quality outcomes and used funding for the mandate as a political tool in line with having established water and sanitation as a priority in their work. They ‘put their money where their mouth is’. Yet, while such support raises questions about disparities between mandates, by itself it does not compromise the individual mandate holder’s independence as long as funders provide general support without influencing how mandate holders make use of the funding. Where donors provide general support to mandates that is not tied to specific projects or products, the mandate holders’ flexibility remains greater and there are (at least no obvious) influences on the mandate’s priorities. The second question, namely whether donors (might) have undue influence in determining the specific priorities of a mandate or even its outcomes 121 Manual of Operations (n 9) para 11.

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and positions, is of greater concern. Donors may have particular areas of work for which they are willing to provide funding. The Special Rapporteur on water and sanitation found that it was much easier to secure funding for concrete outputs and for projects that promote human rights and provide guidance on their implementation. She secured substantial funding for the production of the handbook on the implementation of the human rights to water and sanitation. In addition to donors that provided financial support, other organisations such as unicef were willing to support the production of the handbook through the organisation of promotional events or ensuring the dissemination of the handbook. The relative ease of securing funding for projects that stress positive aspects of the promotion of human rights begs the question whether support is as easily available for more critical work: for identifying human rights violations and monitoring the realisation of human rights that are more closely related to the protection mandate of Special Procedures. While the Special Rapporteur also had funding available for human rights monitoring, including a third additional country mission per year not covered by the regular budget, the overall available funding was skewed towards the promotion – as opposed to protection – of human rights. This imbalance bears the danger of transforming the Special Procedures into ‘miniagencies’ or consultancies with a strong focus on technical assistance and support for implementation while neglecting their function as watchdogs. The unique feature of the Special Procedures system is the combination of ‘stick and carrot’ approaches with direct access to States via delegations in Geneva and un communication channels. It is true that the balance between the two approaches is at times difficult to strike, but it must not be determined by funding priorities. Rather, it should result from an independent assessment by the Special Rapporteur and her judgement in navigating complex political issues and determining the best approach for the realisation of human rights. In case of the handbook, the Special Rapporteur decided to develop it because she witnessed substantial interest in such guidance and saw it as a culmination of the work she had done on her mandate. Only subsequently did she approach donors about funding for the handbook. However, in other instances Special Procedures have been approached with funding offers for specific projects, specific areas of work or for visiting particular countries on mission, sometimes suggested as joint projects with other organisations. The fact that donors have their own priorities and seek to influence mandate holders to encourage work on particular areas raises questions in terms of the independence of mandate holders and their ability to determine their own priorities.

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At present, soliciting and accepting earmarked funding and external funding seems almost unavoidable for mandate holders who seek to expand the activities of their mandates. While tensions between accepting funding and ensuring independence cannot be ruled out, a number of steps could alleviate concerns about such funding undermining Special Procedures’ independence. One approach to counter or at least reduce the potential influence of donors would be for mandate holders to outline their priorities in one of their first reports and use this as the basis for fundraising efforts rather than taking on projects at the request of donors. This was the approach taken by the Special Rapporteur on water and sanitation with the development of the handbook discussed above. In addition, the Coordination Committee of Special Procedures could consider developing guidance on fundraising. As a first step, there could be greater exchange of experiences between (former and current) mandate holders, for instance in the context of the Annual Meeting of Special Procedures. It would also be possible to draw on the experiences of nongovernmental organisations and international organisations that have been grappling with issues of fund­ raising and maintaining independence for a long time and have developed their own policies. Finally, the potential influence donors may have on activities and positions of mandate holders is compounded by a lack of transparency.122 This lack of transparency applies to earmarked as well as external funding. Some mandates indicate the sources of their funding,123 but at present there is no general requirement to report on funding sources and the amounts received. There is also no requirement to ensure transparency about the institutions involved in providing in-kind support to mandates. The un Board of Auditors expressed its concern about this lack of transparency in a 2011 report. It noted that ‘[m]andate holders […] are not required to disclose support received from other sources. […] While recognizing that currently, the mandate holders do not have an obligation to disclose this funding or in-kind support, the Board considers that the absence of clear disclosures could put in doubt the perceived independence of mandate holders’.124 122 Piccone (n 64) 49. 123 For instance, in the handbook she has developed, the Special Rapporteur on water and sanitation indicated the sources of funding for that work. See de Albuquerque (n 46) Introduction 7. 124 unga ‘Financial report and audited financial statements for the biennium ended 31 December 2011 and Report of the Board of Auditors, Volume 1’ (26 July 2012) un Doc A/67/5 (Vol i), para 68.

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It recommended that ohchr should ‘in the interest of transparency, propose to the Human Rights Council that mandate holders be required to disclose all sources of funding and any conditions attached to them’.125 The hrc itself has called for ‘full transparency in the funding of the Special Procedures’126 and mandate holders themselves recognised the issue as one of concern and discussed transparency as a means ‘to safeguard their independence, impartiality and integrity’127 at their Annual Meeting in 2013. They agreed to identify patterns in external funding as ‘a basis for responding to concerns’.128 Mandate holders decided to establish an Internal Voluntary Disclosure Mechanism, which consists of a document where each mandate holder, who wishes to do so, inserts information regarding her or his external sources of funding. The Special Rapporteur on water and sanitation has always provided information, but the mechanism was not universally used by mandate holders. The information gathered is kept by ohchr and the idea is to share a summary with mandate holders at the annual meeting. In response to recent concerns related to external funding, 2015 saw the Coordination Committee of Special Procedures recommend the creation of a new system of disclosure that would be mandatory and public. As a result, mandate holders decided during the Annual Meeting in 2015 ‘to rend disclosure of external funding received mandatory and make it publicly available’.129 Annex x of the report of the Annual Meeting of Special Procedures in 2015 includes detailed information on earmarked and external funding received by each mandate.130 Ensuring transparency on the sources of funding that mandate holders receive, on whether this funding has been allocated for a specific purpose or project, on how mandates have used the funding allocated and on what institutions are involved in providing support is a starting point for guarding against

125 Ibid para 70. 126 unhrc Res 16/21 (23 March 2011) un Doc A/HRC/RES/16/21, para 34; Limon and Piccone (n 12) 22. 127 unhrc ‘Report of the twentieth annual meeting of special rapporteurs/representatives, independent experts and chairpersons of working groups of the Special Procedures of the Human Rights Council (Vienna, 24–28 June 2013)’ (22 July 2013) un Doc A/HRC/24/55, para 35. 128 Ibid. 129 unhrc ‘Report of the twenty-second annual meeting of special rapporteurs/representatives, independent experts and working groups of the Special Procedures of the Human Rights Council (Geneva, 8 to 12 June 2015), including updated information on the Special Procedures’ (17 February 2016) un Doc A/HRC/31/39, para 44. 130 Ibid Annex x.

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the potential undue influence of donors. At the very least, the information on who has funded what (and might have influenced priorities and outcomes) becomes publicly available. The Office of the Special Representative of the Secretary-General on Violence against Children provides an example of how such transparency can be achieved. The Office issues annual financial statements that detail the amount of funding received from different donors and provide an overview on how it has been spent.131 Individual mandate holders can provide such financial statements, which can be compiled in the report of the Annual Meeting of Special Procedures providing an overview of the activities of all Special Procedures. While not solving all issues about donor contributions potentially compromising mandate holders’ independence, ensuring transparency is an easy first step to take. v

Conclusion

The Special Rapporteur often received requests from individuals and organisations about her ‘office’ supporting or contributing to a particular project, activity, event or research. If only such an office existed. The discrepancy between some perceptions of what a Special Rapporteur could achieve and their actual working situation is vast. In other contexts, the Special Procedures are little known, which can be at least partially attributed to their lack of resources. In an ideal situation, each mandate holder would have such an office, possibly a team of advisors in ohchr dedicated to the mandate, with thematic expertise and less fluctuation among staff.132 However, a substantial increase in regular funding needed for such an expansion seems unlikely at present. For mandate holders who want to pursue an active agenda, securing earmarked and external funding is therefore the only available option. Greater transparency in funding would be an important first step in addressing the challenges that the system faces. At least as important as funding are collaborations with other organisations and stakeholders to amplify the work of mandate holders. The Special Rapporteur often felt that the Human Rights Council was like a ‘bubble’. While many discussions and important developments take place in the Human Rights

131 Office of the Special Representative of the Secretary-General on Violence against Children, ‘Annual Financial Statements’ accessed 26 April 2016. 132 See Naples-Mitchell (n 22) 244.

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Council, the litmus test for mandate holders is to take their work outside of this ‘bubble’ and to apply it to national and local contexts and people’s lived realities. The Special Procedures are a system that has grown organically. There is no single institutional home, no single document outlining their functions and the tools they employ, and no single funding mechanism. This results in great complexity and some inherent tensions, but it also gives the Special Procedures their flexibility and autonomy, and with that their strength.

chapter 8

Working Out a Working Group: A View from a Former Working Group Member Olivier de Frouville Abstract This chapter provides insights from the practice of a specific Special Procedure tak­ ing the form of a working group of five independent experts: the Working Group on Enforced or Involuntary Disappearances (wgeid). The chapter looks in particular at the origins of the wgeid’s ‘humanitarian mandate’, examining how the wgeid has developed methods of work for the implementation of this mandate, and the difficul­ ties and prospects that lie ahead. The chapter also goes beyond these methods of work in order to examine what might be called the ‘private life’ of the wgeid – that is, the unwritten rules and/or practices which are crucial for the effective functioning of the Working Group. Four key aspects are discussed: first, chairing a Working Group; sec­ ond, sessions; third, building cooperation with stakeholders; and finally, the relations with others – in particular, with victims and human rights defenders.

Keywords enforced or involuntary disappearances – working group – humanitarian mandate – competence – methods of work – internal rules – cooperation

i

Introduction

The United Nations Working Group on Enforced or Involuntary Disappear­ ances was first established in 1980 as a ‘thematic mandate’ of the Human Rights Commission. For more than 30 years this organ, composed of five independent experts1 appointed by the Commission and now the Council,2 was one of the

1 One per ‘region’, as the term is understood in the un system, namely Africa, Latin America and the Caribbean, Asia, Eastern Europe, Western Europe and ‘Others’. 2 As per the procedure set out in un Human Rights Council (unhrc) Res 5/1 (18 June 2007) and in the annex to Res 16/21 (25 March 2011) un Doc A/HRC/RES/16/21. © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004304703_010

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few international procedures for thousands of families of disappeared persons seeking the truth about the fate or whereabouts of their relatives and con­ fronted with persecution by the States responsible for those disappearances. The Working Group was at the forefront in identifying the phenomenon of ‘disappearances’ in the early 1980s and in defining its legal regime; those con­ siderations were to contribute to the adoption, first, of the Declaration on the Protection of All Persons from Enforced Disappearance of 18 December 1992, and then the Convention for the Protection of All Persons from Enforced Dis­ appearance of 20 December 2006. Since its establishment, the Working Group has transmitted 54,557 individual cases to 105 States. The Working Group still has more than 43,563 outstanding cases in 88 States.3 The entry into force in 2010 of the Convention for the Protection of All Per­ sons from Enforced Disappearance saw the establishment of a new Committee on Enforced Disappearances.4 The Working Group and the Committee are ful­ ly complementary: whereas the Committee’s competence is restricted to States Parties, the Working Group can deal with situations anywhere in the world; equally, whereas the Committee deals only with individual cases beginning after the Convention came into force for the States concerned, the Working Group continues to examine cases that occurred before the Convention came into force. Also, the Committee issues its legal findings on whether States com­ ply with the Convention’s provisions in individual cases, whereas the Working Group’s role ends when the fate or whereabouts of the disappeared person is ascertained.5 But beyond these differences, Special Procedures and treaty bodies are of a different nature, even when the Special Procedure is a collective body, that is, a ‘Working Group’. Special Procedures have been, from the beginning, a practical and flexible device based on cooperation geared at the promotion, progressive development and effective implementation of human rights standards. Stating what the law is and bringing to light violations are, of course, part of the work 3 See unhrc ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (10 August 2015) un Doc A/HRC/30/38, para 5. 4 See O de Frouville, ‘The Committee on Enforced Disappearances’ in P Alston and F Megret (eds), The United Nations and Human Rights: A Critical Appraisal (2nd edn, oup forthcoming). 5 See O de Frouville, ‘La complémentarité entre le Groupe de travail et le Comité des dispari­ tions forcées’ (7th International Symposium – La Convention internationale pour la protec­ tion de toutes les personnes contre les disparitions forcées. Les enjeux d’une mise en œuvre universelle et effective, Université Paris, 15 May 2012) accessed 12 February 2016.

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of Special Procedures. But Special Procedures also aim at helping to create the conditions for law to be respected by States. Special Procedures are agents of change and ‘catalysts for rights’.6 It is the goal of this contribution to give some insights on the work of a Working Group, the Working Group on Enforced or Involuntary Disappearances (wgeid). The analysis below comes from my personal experience as a former member (2008–2014) and Chair-Rapporteur (April 2012–October 2013) of this Group. It proceeds in two parts. First, it ad­ dresses the central part of the wgeid’s mandate, which is to deal with indi­ vidual cases of disappearances. Then, it reviews less visible aspects of the work of this Group – namely its internal rules and procedures. This latter part, in other words, reviews the wgeid’s ‘private life’. ii

A Working Group at Work: Dealing with Individual Cases of Disappearances

It is important to consider the origins of the wgeid’s ‘humanitarian mandate’, before examining how the wgeid progressively developed appropriate meth­ ods of work for its implementation, and reflecting upon the difficulties and prospects. A The Origins of the Humanitarian Mandate In its very first reports, the Working Group set out the main parameters con­ cerning the implementation of its mandate and those parameters still apply today. The Working Group did not merely receive allegations about enforced disappearances in the form of the thousands of letters sent to it for the most part by victims’ families.7 It got in touch with governmental delegations in 6 T Piccone, ‘The Unique Contribution of the un’s Independent Experts on Human Rights’ (Brookings Institution 2010). 7 un Commission on Human Rights (unchr) ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (31 December 1981) un Doc E/CN.4/1492, paras 31–32: ‘the Working Group examined information on the disappearance of some 2,100 people and trans­ mitted to governments reports on the disappearance of some 1,950 individuals. … The pres­ ent report contains information on reported enforced or involuntary disappearances in a number of countries (…): Argentina, Bolivia, Brazil, Chile, Cyprus, El Salvador, Ethiopia, Gua­ temala, Guinea (People’s Revolutionary Republic of), Honduras, Indonesia, Iran, Lesotho, Mexico, Nicaragua, Philippines, Sri Lanka, Uganda, Uruguay and Zaire. (…) South Africa and Namibia’. The Working Group pointed out – and continues to point out today – ‘disappear­ ances may have occurred in countries other than those listed above but that, for a number of reasons, such reports, if they exist, have not reached the Group. Further, the number of cases

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Geneva, transmitted to them the allegations it had received, and asked the delegations to meet with it to give their explanations.8 It soon contemplated travelling to ‘certain countries concerned’, thereby foreshadowing the current practice of field ‘visits’.9 The Working Group provided a ‘channel of communi­ cation’ between families and governments.10 It became a kind of intermediary, a ‘mediator’, but also a sounding drum, because all of its activities concern­ ing cases of enforced disappearance were from the outset summarised and detailed in its public report made annually to the Commission. The Working Group examined the cases received in great detail,11 country by country, high­ lighted the constants, the patterns and drew up lists of secret detention cen­ tres.12 It appended the interventions by family associations at its sessions and responses from governments, and this was especially true of the Argentinian Government which made particularly vehement and detailed denials of any involvement in ‘alleged’ disappearances. From its very first report, also, the Working Group grounded its practice in the paragraph of the resolution establishing it, which required it to act effi­ ciently and to adopt an emergency action procedure. The Working Group thus delegated authority to its Chairman to transmit new cases immediately by ‘ca­ ble’ ‘seeking information from the Government concerned and its assistance in tracing the person or persons involved’.13 The Working Group was aware from the outset of the importance of such a procedure: Thus, while the Working Group has been in existence, it may well have been realized by those, throughout the world, who contemplated the 8 9

10

11 12 13

reported to the United Nations could well be fewer, perhaps very much fewer, than the true number of cases of disappearance in a given country’. unchr ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (26 January 1981) un Doc E/CN.4/1435, para 35. Ibid para 8. The Working Group’s first visit was to Mexico in January 1982: unchr ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (21 January 1983) un Doc E/CN.4/1983/14, para 19. unchr (n 8) para 33: ‘In order to help clarify the information on enforced or involuntary disappearances which it had received, the Group, in accordance with Commission resolu­ tion 20 (xxxvi) and Economic and Social Council decision 1980/120, decided to transmit the information, without expressing any opinion on its reliability or validity to the Gov­ ernment of the country concerned with a request that the Government transmit to the Group such information or views as it might wish’. Ibid paras 49ff. Analytical summary of 500 reports submitted directly by individuals. unchr (n 8) para 58. Ibid para 10.

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d­ etention of a person and his disappearance, that the Group was con­ tinuously acting as the eyes of the international community, and acting with that sense of urgency which alone can save lives.14 In its second report, the Working Group underscored how useful this new pro­ cedure was: It is in respect of requests for information on recent disappearances that the Group can claim some results in collaboration with others interested in these cases. The emergency procedure … has again been used where reliable reports of disappearances have been received. Governments have responded with news about the detention, or sometimes the release, of the person concerned. There is some indication that this procedure has saved lives; it is to be hoped that it may also have had a deterrent effect in preventing a disappearance from happening at all.15 In beginning to fulfil this function of examining communications, the Working Group soon found itself faced with a dilemma: should it play a quasi-judicial role, like the Human Rights Committee which, during the same period, began to adopt its first ‘views’ on cases of enforced disappearances in Uruguay? Or should it have primarily a more operational purpose, namely, locating disap­ peared persons? The wgeid ultimately opted for the latter approach, stating that: The Working Group has taken note of the fact that there is a considerable volume of opinion according to which Governments should assume re­ sponsibility for disappearances and discharge its responsibility. Equally,

14 Ibid. 15 unchr (n 7) para 7. Even now, the wgeid insists on the major importance of the urgent procedure in terms of saving lives. See e.g. the joint press release by the wgeid and the Committee on Enforced Disappearances on the occasion of the International Day of the Victims of Enforced Disappearances, 30 August 2015 accessed 9 March 2016: ‘The expe­ rience and use of the tool of urgent actions by the Committee and the Working Group show that in the case of enforced disappearance time is of the essence. The hours and day that follow a disappearance are crucial to find the disappeared person alive. The ac­ tions taken in the immediate aftermath of a disappearance cannot be left to hazards but have to be systematized in protocols that permit the immediate activation of all means at disposal for the search of the disappeared’.

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numerous touching and eloquent requests for help in discovering what has happened to the disappeared have been received. In the present state of the Group’s knowledge, it is this latter humanitarian approach which has assumed prominence. Accordingly, this report does not contain pro­ nouncements or attributions of responsibility. It will be seen that the number of conclusions and recommendations is very limited.16 Subsequently and until the present day, the Working Group has continued to characterise its mandate, with regard to individual communications, as a ‘humanitarian’ mandate. This choice is based on the observation that the pri­ mary concern of victims is to receive information about their relatives. The question of responsibility of the State or of the perpetrators of enforced dis­ appearances comes second. This does not mean that the right to the truth prevails over the right to justice or the right to reparation. The Working Group takes a pragmatic rather than a legal approach on this point: it seeks above all to end the suffering caused by uncertainty about the fate or whereabouts of the disappeared person. Even so, it does not refrain from reminding States of their international legal obligations. In fact, since 1993, the wgeid has been tasked with monitoring the implementation of the un General Assembly 1992 Declaration for the protection of all persons against enforced disappear­ ances.17 This task forms the second part of its overall mandate, and is carried out mainly through field visits and through the so-called procedure of ‘general allegations’ discussed below. But here, we will focus particularly on the first part of the mandate, which is the review of individual cases, the aforemen­ tioned ‘humanitarian mandate’. The Implementation of the Humanitarian Mandate: ‘Methods of work’ The Working Group’s mandate has barely changed over time. More often than not, in renewing the wgeid mandate, the Human Rights Commission and then the Human Rights Council simply recalled their earlier resolutions with­ out fundamentally altering the mission entrusted to the Working Group in the initial resolution 20(xxxvi). Of course, the Commission enshrined the new role the Working Group was to play with respect to the Declaration adopted in 1992. From time to time, both the Commission and the Council have also en­ trusted the Working Group with one-off mandates, for example for conducting B

16 unchr (n 8) para 9. See also unchr (n 7) para 5. 17 See unchr ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (5 March 1993) un Doc E/CN.4/1993/25.

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a specific study.18 The changes are therefore the doing of the Working Group itself, which has progressively developed its working methods on its own ini­ tiative and then steadily refined and amended them. This has been a continu­ ous process, reflecting the Working Group’s independence. The foundations of the methods of work were laid down in the Working Group’s earliest reports. The major principles were set out in 1985,19 however, the earliest consolidated version of the methods of work, taking up all of the techniques developed un­ til then, first appeared in 1988.20 Here I shall examine the Working Group’s parameters of competence, before turning to the procedure for processing in­ dividual cases. (i) The Question of Competence The Working Group has faced several difficult questions about determin­ ing its competence. Some of them have been solved recently, after years of discussions, like the jurisdiction on cases that occurred during international armed conflicts (iac) and the ratione temporis jurisdiction. Others are still debated, like the competence over disappearances perpetrated by non-state actors. Enforced Disappearances in International Armed Conflicts In 1982 Iran asked the Working Group to examine the cases of 9,405 disap­ peared persons in western Iran in the context of its conflict with Iraq. The representative of the Islamic Republic of Iran pointed out ‘that the Working Group’s activities in relation to missing persons in Cyprus provided a partial precedent for the Iranian Government’s request’.21 But the Working Group an­ swered that ‘there appear to exist substantial differences between the two situ­ ations’ and decided to request ‘the Commission’s opinion’.22 However, one year on, the Working Group was forced to observe that the Commission had not responded to its request for directions. In the meantime, the Working Group

18

See e.g. unhrc ‘Enforced or Involuntary Disappearances’ (18 June 2010) un Doc A/HRC/ RES/14/10, in which the Council requested the wgeid to prepare a report on best prac­ tices on enforced disappearances in domestic criminal legislation. See also the study unhrc ‘Addendum – Best practices on Enforced Disappearances in Domestic Criminal Legislation’ (28 December 2010) un Doc A/HRC/16/48/Add.3. 19 unchr ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (23 January 1985) un Doc E/CN.4/1985/15, paras 73ff. 20 unchr ‘Report of the Working Group on Enforced or Involuntary Disappearances: Visit to Guatemala (5–9 October 1987)’ (21 December 1987) un Doc E/CN.4/1988/19, paras 16ff. 21 See unchr (n 9) para 120 for reference to letter from Iranian Government. 22 unchr (n 9) paras 118–20.

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had received similar fresh requests in connection with the South Atlantic War (the Falklands War) and the conflict in Southern Lebanon. Being plainly anx­ ious not to unduly increase its workload, the Working Group took the view that ‘it was not within its competence under its present mandate to inquire into disappearances arising in such circumstances unless it was expressly directed to do so by the Commission. It noted the requests made for its assistance in three such situations and the material presented to it will remain in the files’.23 Those ‘circumstances’ meant enforced disappearances taking place during an iac, as opposed to times of peace or non-international armed conflict (niac). Such a decision was not so easy to justify, as Iran argued rightly that, from its inception, the wgeid had been following the issue of the ‘missing persons’ in Cyprus – which could be characterised as resulting from an iac. Later on, the wgeid tried to give a more legal rationale to this limitation, by referring to the mandate of the International Committee of the Red Cross (icrc) with regard to ‘missing persons’: The Working Group does not deal with situations of international armed conflict, in view of the competence of the International Committee of the Red Cross (icrc) in such situations, as established by the Geneva Conventions of 12 August 1949 and the Protocols additional thereto.24 Despite this, the wgeid continued to follow the situation in Cyprus until 1997.25 And in 1993 it reiterated its position with regard to the thousands of cases it received in relation to the conflict in former Yugoslavia:26 From the very early years of its existence, the Working Group has consis­ tently taken the view that cases occurring in the context of an interna­ tional armed conflict should not be taken up by the Group. That ­position

23 24 25

26

unchr ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (9 De­ cember 1983) un Doc E/CN.4/1984/21, paras 20–21. unchr (n 20) para 18. The last chapter on Cyprus can be found in the 1997 annual report: unchr ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (12 January 1998) un Doc E/ CN.4/1998/43, para 148. unchr ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (22 December 1993) un Doc E/CN.4/1994/26, para 37: ‘Over 11,000 cases of disappearances in the former Yugoslavia were reported to the Working Group in 1992, most of which oc­ curred during the hostilities between Croatian forces and the Yugoslav national army in 1991’.

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was occasioned by the Iran-Iraq war. The Group argued at the time that taking all cases of disappearance occurring in international armed con­ flicts, including the disappearance of combatants, would be a task far sur­ passing the resources of the Group. It also argued that, in any event, there already existed an international agency, namely the International Com­ mittee of the Red Cross, entrusted with the duty of tracing disappeared persons in such circumstances.27 As for the specific case of former Yugoslavia, the wgeid remarked that if it was unsure about the correct characterisation of the conflict,28 it was inconceivable that nothing would be done in relation to missing persons. But the wgeid’s mandate, methods of work and resources were manifestly inadequate: It is obvious that if the Group were asked to involve itself in the situa­ tion in the former Yugoslavia, its resources would be totally inadequate to meet an influx of such magnitude. (…) Apart from the question of resources, the methods of work of the Work­ ing Group (…) – are not really geared to handling situations of the size and nature of the one in the Former Yugoslavia. The Group’s approach has consistently been to consider cases on an individual basis; this would, of course, become an illusion if attempted in a situation where the dis­ appearances are on a very large scale, an experience the Group already suffered in the case of Iraq regarding disappearances that occurred after the end of the war in Iran. Incongruity exists between the exigencies of the situation in the for­ mer Yugoslavia and the Group’s existing methods of work. (…) If the Working Group were to assume the responsibility itself, its involvement in the matter would amount, at best, to a bookkeeping exercise, which would hardly do justice to the proportions of the problem.29 What to do then? The wgeid picked up a recommendation made by the Spe­ cial Rapporteur on the former Yugoslavia, Mr Tadeusz Mazowiecki, to create a ‘special commission of inquiry’ which could develop its own working methods. The Commission subsequently adopted resolution 1993/7 in which it request­ ed the Special Rapporteur, in consultation with the wgeid, to develop propos­ als for a mechanism to address the issue. Following a visit in the region by a 27 28 29

unchr (n 17) para 38. Ibid para 39. Ibid paras 40–43.

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member of the wgeid,30 the Commission, in its resolution 1994/72, decided to create a ‘special process’ as a joint mandate of the Special Rapporteur and of one member of the wgeid, Mr Manfred Nowak.31 The issue was brought back and discussed at the 95th Session in Novem­ ber 2011. It occurred to me, first, that our predecessors, in 1993, had taken the right decision in deciding not to deal with those thousands of cases under their usual methods of work; they were right in believing that they would inevita­ bly disappoint expectations, as the wgeid did not in fact have the capacity to manage such an amount of cases, having already a significant backlog to deal with. But secondly, I also thought that they could still have done something other than dealing with individual cases. Of course, eventually, the creation of a ‘special process’ seemed to be the good solution at that time.32 But had the special process not been created, it would not have been an excuse for the wgeid to remain totally inactive. The wgeid could have acted through differ­ ent means: it could have proposed its expertise to the States concerned, tried to act as mediators between the parties or helped to devise mediation tools, helped to build protocols for the search of the disappeared, undertaken field visits, and of course, assessed the situation against the standards of the Dec­ laration, including through our procedure of ‘general allegations’. There were, in other words, many things that the wgeid could have done with regard to these situations without taking individual cases and putting itself in a situ­ ation where it would not be in a position to deal with thousands of backlog cases under its usual methods of work. That is in fact the reasoning that was more or less followed when the wgeid decided to resume its consideration of the situation in former Yugoslavia in 2010: there was a clear opinion from the members of the Group that having decided not to take up the case did not mean that we should not monitor the situation at all.33

30 See unchr ‘Report on the visit to former Yugoslavia (4–13 August 1993)’ (15 December 1993) un Doc E/CN.4/1994/26/Add.1. 31 unchr ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (30 December 1994) un Doc E/CN.4/1995/36, para 43. For an account by the mandate holder, see M Nowak, ‘Monitoring Disappearances: The Difficult Path from Clarifying Past Cases to Effectively Preventing Future Ones’ (1996) 4 European Human Rights Law Review 348. 32 It ultimately proved difficult to manage and Manfred Nowak resigned on 26 March 1997, ‘to protest “a lack of political will” to obtain information on thousands of missing persons in the region’: Press Release HR/CN/780 (Geneva, 26 March 1997). 33 See unhrc ‘Report of the Working Group on Enforced or Involuntary Disappear­ances: Addendum – Mission to Bosnia and Herzegovina’ (28 December 2010) un Doc A/ HRC/16/48/Add.1, paras 19–20.

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So, one route would have been to decide to abolish the limitation with re­ gard to iac, except for individual cases. But the majority of the wgeid instead decided that there was no point in differentiating between the two types of conflicts for the purpose not only of our monitoring mandate but also of our ‘humanitarian’ mandate.34 There was no disagreement on the substantial ar­ gument to support such a move. We all agreed that generally the distinction between iac and niac had lost much of its significance, in particular as far as serious crimes such as enforced disappearances were concerned. Even though the corpus of norms applicable to both types of conflicts were still different, customary law applicable to niac had made the distinction quite negligible, at least as far as a number of issues were concerned. And one could easily argue that if we could protect people in situations of niac, it was absurd not to grant the same protection to people disappeared in situations of iac: qui peut le plus peut le moins! Furthermore, in a lot of recent conflicts, the two types of con­ flicts have overlapped – including in former Yugoslavia, which could be seen as an ‘internationalised’ niac, or in other situations like Pakistan, where a nonconsented external intervention would internationalise an otherwise internal conflict. Finally, the main legal argument which had been put forward by our predecessors – that is the complementarity of roles with the competence of the icrc under Protocol i35 – was not convincing either, since the icrc had extended its competence to all the ‘missing’ and their families in all sorts of contexts, peacetime, niac or iac. Still, the rationale of our predecessors with regard to more practical con­ siderations remains valid; that is, the inadequacy of the wgeid’s methods of work and capacity to deal with thousands of cases of ‘missing’ persons result­ ing from an armed conflict, be it an iac or a niac. Efforts should be made in the future to try to devise new types of procedures or to improve the existing procedure so as to overcome this issue. Temporal Jurisdiction The Working Group was asked on several occasions to deal with individual ­cases dating from before 1945. It formally dismissed such cases on the basis that its competence did not extend back beyond the establishment of the United ­Nations in 1945. In point of fact, however, this position was dictated above all by pragmatic considerations, given the Working Group’s scant resources and

34 35

unhrc ‘Report of the Working Group on Enforced or Involuntary Disappearances: Addendum – Mission to Timor-Leste’ (26 December 2011) un A/HRC/19/58/Rev.1, para 4. See text at nn 24 and 27.

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the ever-growing number of cases referred to it each year. However, this posi­ tion was hardly in tune with the Working Group’s doctrine that enforced dis­ appearance was a continuous crime. In 2010 the wgeid adopted its General Comment on enforced disappearance as a continuous crime in which it called upon ‘tribunals and other institutions (…) to give effect to enforced disappear­ ance as a continuing crime or human right violation for as long as all elements of the crime or the violation are not complete’.36 It seemed quite logical that the wgeid should apply this recommendation to itself and consider informa­ tion relating to enforced disappearances that commenced before 1945. Accord­ ingly, in 2009, the Working Group decided to backtrack in part on its previous limitation of competence by agreeing to adopt a general allegation about vio­ lations of the 1992 Declaration relating to events before 1945 (namely, enforced disappearances in Spain from 1936 onwards).37 This solution seemed a good compromise; it allowed the wgeid to deal with enforced disappearances that commenced before 1945, without taking up new individual cases which would have increased its backlog. However, in 2013, further to its visit to Spain in re­ sponse to requests from families of disappeared Spaniards, the Working Group finally decided to abolish completely the ratione temporis limit that it had set to its competence and so accept cases of enforced disappearance before 1945. While one can sympathise with the descendants of the victims of past con­ flicts, it seems reasonable to think that a limit has to be set to the ratione temporis jurisdiction of any entity. This limit is always somewhat arbitrary. Why the choice of the date of the creation of the un (1945) and not that of the creation of the wgeid (1980)? Why 1945 and not 1919? Enforced Disappearances and Non-state Actors In 1986, the Working Group noted that several governments had informed it that ‘certain groups operating in their countries were to be held responsible for cases of disappearances’.38 Moreover, the Working Group had also received offers of cooperation from nongovernmental entities. In response, the Work­ ing Group stated its position that ‘as a matter of principle, (…) such groups cannot be approached by it, with a view to investigating or clarifying cases of disappearances, which, in accordance with the rules of international law, 36

unhrc ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (26 January 2011) un Doc A/HRC/16/48, para 5. 37 See unhrc ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (21 December 2009) un Doc A/HRC/13/31, paras 481ff. 38 unchr ‘Report of the Working Group on Enforced or Involuntary Disappearances’ un Doc E/CN.4/1986/18 (24 January 1986), para 34.

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remain the exclusive responsibility of Governments, irrespective of the alleged authorship in specific cases’.39 This was not to say that enforced disappearances could not be perpetrated by non-state actors. Rather what the wgeid meant, as I understand it, was: first that the State was as a matter of principle the sole entity capable of re­ sponsibility in international law; and, second, that it was not practically fea­ sible to ‘approach’ non-state actors in order to request clarifications on the fate or the whereabouts of the disappeared. In 1992 however, the Declaration went further in the description it provided in its Preamble of the concept of ‘enforced’: in the sense that persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government….40 In other words, enforced disappearance was described as being only a state crime. Accordingly, entrenching its initial position, the Working Group ex­ cluded from its competence enforced disappearances committed by private persons. This position is reflected in its methods of work: The Working Group operates for purposes of its work on the basis that, in accordance with the definition contained in the preamble of the Dec­ laration, enforced disappearances are only considered such when the act in question is perpetrated by State actors or by private individuals or or­ ganized groups (for example, paramilitary groups) acting on behalf of, with the support, direct or indirect, consent or acquiescence of, the State. Based on the above, the Working Group does not intervene in cases that are attributed to persons or groups not acting on behalf of, or with the support, direct or indirect, consent or acquiescence of, the Government, such as terrorist or insurgent movements fighting the Government on its own territory.41 39 Ibid. 40 Declaration on the Protection of All Persons from Enforced Disappearance, A/RES/47/133 (18 December 1992), Preamble para 3 (emphasis added). 41 unhrc ‘Methods of Work’ (2 May 2014) un Doc A/HRC/WGEID/102/2, para 8. For the original formulation, which is more nuanced as it only makes a statement in terms of competence and not of substance, see unchr (n 20) para 19: ‘In transmitting cases of

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The situation in former Yugoslavia also provided an opportunity to the wgeid to reassert this view. A number of the 11,000 cases received by the wgeid were enforced disappearances perpetrated by non-state actors, in particular the armed groups fighting on behalf of the Bosnian Serbs or Bosnian Croats. The wgeid considered that these cases did not fall within its mandate, which was one justification for having a ‘special process’.42 Behind the question of competence, there is, of course, a more fundamental problem, which is one of the actual definition of enforced disappearance. Does the definition of enforced disappearance include state agency as a constitu­ ent component? This question is being increasingly debated. Extension of the definition to private actors now finds support in the 2006 Convention (article 3) but also in the Rome Statute establishing the International Criminal Court disappearances, the Working Group deals exclusively with Governments, basing itself on the principle that Governments must assume responsibility for any violation of human rights on their territory. If, however, disappearances are attributed to terrorist or insur­ gent movements fighting the Government on its own territory, the Working Group has refrained from processing them. The Group considers that, as a matter of principle, such groups may not be approached with a view to investigating or clarifying disappearances for which they are held responsible’. See also unhrc ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (25 January 2007) un Doc A/HRC/4/41, para 18: ‘In the context of internal armed conflict, such as in Nepal, Uganda and Colombia, op­ position forces have reportedly perpetrated disappearances. While the mandate of the Working Group is limited to violations carried out by State agents or non-State actors acting with the consent or acquiescence of the State, the Working Group condemns the practice of disappearance irrespective of who the perpetrators may be’. 42 See unchr (n 26) para 42: ‘In the report submitted to the Working Group in September 1993, Mr van Dongen proposed that all cases of missing persons in any part of the former Yugoslavia should be considered under a special procedure, regardless of whether the victim was a civilian (non-combatant) or a combatant, and regardless of whether the per­ petrators were in effect connected to the Government or not. In other words, the target group of missing persons would be wider than the one covered by the Working Group’. See also Nowak’s first report, un Doc E/CN.4/1995/37, para 12: ‘(e) In principle, the special process deals with all cases of missing persons, regardless of whether the perpetrators are in effect connected to government authorities or not. Only cases that are clearly the result of common crimes are excluded; (f) It follows from the general approach of the special process that the expert submits individual cases to both the Government and de facto authorities involved at the national, regional or local levels. (…) This is another major difference from the methods of the Working Group, which deals exclusively with national Governments. As has been pointed out in Mr van Dongen’s report, in the context of the former Yugoslavia the traditional method of the Working Group would be a “self-­ defeating approach” (E/CN.4/1994/26/Add.1, para 74)’.

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(article 7(2)(i)). Similarly, the Human Rights Committee, in a recent decision on Bosnia-Herzegovina, considered ‘that the term “enforced disappearance” could be used in an extended sense, referring to disappearances initiated by forces independent of or hostile to a State party, in addition to disappearances attributable to a State party’.43 It is possible to reason by analogy with the crime of torture. Conceived in the crucible of human rights, the initial definition of the crime of torture, set out in the 1984 United Nations Convention, restricted the scope to acts perpe­ trated by state agents or under their aegis. When an indictment came before it as a war crime, the Trial Chamber and then the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia decided in the case of Kunarac that such connection with the State could not be considered a con­ stitutive element of the crime.44 There are certainly pros and cons to extending the definition of enforced disappearances to non-state actors and, as a conse­ quence, extending the competence of the wgeid to find cases attributable to non-state actors admissible. The wgeid has recently decided to consider the matter, as explained in its 2015 annual report: The Working Group is concerned about increasing instances of abduc­ tions carried out by non-state actors, which may be tantamount of acts of enforced disappearances. The Working Group has decided to continue paying attention to and studying the question of disappearances carried out by non-state actors in order to determine if those situations fall under its mandate and, if so, what actions should be taken.45 43 44

45

See e.g. un Human Rights Committee Zilkija Selimović v Bosnia and Herzegovina (17 July 2014) Comm 2003/2010, para 12.3. Prosecutor v Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Appeal Judgment) ICTY-96-23 and ICTY-96-23/1-A (12 June 2002). This reasoning was apparently followed by the International Commission of Inquiry on Syria in ‘Conference Room Paper: “Without a Trace: Enforced Disappearances in Syria”’ (19 December 2013) para 5: ‘Under international law, an act of enforced disappearance is committed by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, thus resulting in a human rights violation. In the context of international humanitarian law, this requirement must be interpreted to include agents of non-State actors, in order for this prohibition to retain significance in situations of non-international armed con­ flict such as Syria’ accessed 9 March 2016. On enforced disappearances as a crime against humanity, see O de Frouville, Droit international pénal (Pedone 2012) 173. unhrc ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (10 August 2015) un Doc A/HRC/30/38, para 107.

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(ii) Processing Individual Cases Discussions about the Working Group’s mandate have never ceased. There have always been voices to denounce the Working Group’s choice to confine itself to a ‘humanitarian’ mandate with respect to individual cases. Those crit­ ics considered that there was in this an unwarranted form of self-limitation and that the Working Group should take on a quasi-judicial role instead. By this it was meant that as the outcome of examining cases submitted to it, it should adopt an ‘opinion’ or ‘findings’ ruling on the State’s responsibility in international law and the consequences of such responsibility, especially in terms of reparation. The Working Group has on several occasions justified its choice to adhere to a humanitarian approach. In 1984, the Working Group examined the value of this approach as follows: The essential basis of the Group’s inquiries has been explained, not only in previous reports, but also in all approaches to Governments with which it has been in contact: no accusations are involved, no confessions or selfincriminations are sought. The critical fact is that only a Government has the resources which can help to solve the cases. So long as the exercise is recognized as being entirely humanitarian, neither responsibility for a disappearance nor the question of punishment enters in the Working Group’s consideration … The Group’s reports show that the policy has been borne out in practice. Reactions in the Commission’s debates and governmental responses show that this strict and consistent approach is being increasingly recognized and relied upon. It is at present the Work­ ing Group’s main source of strength, backed as it is by successive con­ sensus approval of its actions over nearly four years in all United Nations forums.46 The essence of the humanitarian mandate is to be found in the methods of work; namely, the inclusion of each individual case in a special database main­ tained and updated by the Office of the un High Commissioner for Human Rights (ohchr) and the repeated transmission each year of outstanding cases to the States concerned. Each case listed is updated regularly in light of the information transmitted by the two parties (State and source) for so long as the case is held in the database. The Working Group is therefore the custodian (with the ohchr) of a sort of international register of disappeared people. 46

unchr (n 23) para 176.

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A register that is incomplete, admittedly, and which gives only a glimpse of the overall problem so to speak – but a stable and protected register, sheltered from the vicissitudes and disturbances of life within individual States. And so it is a guarantee that each of the disappeared persons will continue to be the subject of international attention and the State will continue to be reminded of its responsibility regardless of any changes in its government. Each case received by the Working Group is examined against five elements that determine whether it is admissible. The author must state the victim’s name, the date of disappearance, the place where the victim was arrested or abducted, the agents suspected of causing the disappearance and the measures taken by the family to determine the disappeared person’s fate or whereabouts. If the communication comes from an organisation or a person mandated by the family, that organisation or person must state expressly that the family has consented to the case being put before the Working Group in their name. In practice, the secretariat does not automatically set aside forms that do not contain all five elements, but gets back in touch with those who have submit­ ted the cases to ask them to complete the form in full. It is only when the author fails to answer such requests that, after one year, the case is ‘set aside’, knowing that the source can always return later to provide the missing information and so have the case recorded in the database. This flexible approach to the ‘condi­ tions of admissibility’ is consistent with the strictly humanitarian nature of the procedure, which cannot be likened to judicial proceedings. Once the Working Group has found the case admissible, it is transmitted to the State concerned through its delegation in Geneva. The case is counted in the statistics for the State concerned and included in the Working Group’s public report in the chapter for the relevant State. What happens when several countries are implicated in the enforced disappearance (either because the agents of one State abducted the person on another State’s territory or because the agents of two or more countries cooperated in abducting the person)? In such instances, the Working Group practised, and in 1989 codified in its meth­ ods of work, the rule of ‘territoriality’;47 namely, the information is forwarded to all ‘government[s] concerned, however the case would only be counted in the statistics of the country in which the person was reportedly arrested, de­ tained, abducted or last seen’.48 The Working Group modified this rule in 2011:

47

unchr ‘Report of the Working Group on Enforced or Involuntary Disappearances: Ad­ dendum – Visit to Colombia (24 October – 2 November 1988)’ (6 February 1989) un Doc E/CN.4/1989/18, para 23. 48 See unhrc (n 36) para 16 of the methods of work.

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it added to its methods of work that ‘[i]n exceptional circumstances, and if the humanitarian mandate of the Working Group so requires’, cases involv­ ing several countries may be counted in the statistics ‘of a different State’.49 In such a case, the ‘territorial’ State is provided with a copy of all communications exchanged with the ‘other State’ in the hope that it can provide information to help clarify the case. This change was decided on by the Working Group in light of a number of situations in which enforced disappearances clearly had to be attributed to a State acting unlawfully in another State’s territory. This was the case in par­ ticular of the ‘abductions’ ascribed to North Korea in the territory of Japan and other States. It appeared odd and above all ineffective that such cases should be addressed in the context of dialogue with the territorial State rather than the State responsible. In the humanitarian outlook of the procedure, however, such ‘responsibility’ or ‘attribution’ has not strictly a legal sense inasmuch as it is based on what for the Working Group remain ‘allegations’ and not findings in law. Transmission to the State is by either the standard procedure or the urgent procedure. The distinction between the two depends on the date of the dis­ appearance. If the case occurred within three months preceding the Working Group receiving the communication, the Working Group authorises its ChairRapporteur by delegation to forward the communication ‘through the most direct and rapid means possible’.50 All other communications are examined by the Working Group in full at one of its three annual sessions. During its three sessions, the Working Group also examines all new information transmitted by States or sources. Often, such new information does not make it possible to reach a conclusion about the fate of the disappeared person; it is transmitted to the other party. But the Working Group may also be confronted with infor­ mation that brings it to take a number of decisions and notably to put an end to a case. First, the Working Group may decide that a case is ‘clarified’ when ‘the fate or whereabouts of the disappeared persons are clearly established’.51 If the information about the fate or whereabouts of the disappeared person comes from the government – and not from the family or a un fact-finding mission, for example – the Working Group will send such information to the source and submit the case to what is called the ‘six-month’ rule. This means that if the source ‘does not respond within six months of the date from which

49 50 51

Ibid para 20. unhrc (n 36) para 10. unhrc (n 36) annex 1, para 21.

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the State’s reply was communicated to it, or if it contests the State’s informa­ tion on grounds that are considered unreasonable by the Working Group, the case will be considered clarified’.52 The Working Group may furthermore take two other types of decision that put an end to the examination of a case. It may ‘decide to archive a case when the competent authority specified in the relevant national law issues a dec­ laration of absence as a result of enforced disappearance’.53 However, such a decision may only be made if ‘the relatives or other interested parties have manifested, freely and indisputably, their desire not to pursue the case any fur­ ther’. The methods of work specify that ‘[t]hese conditions should at all times respect the rights to truth, justice and integral reparation’.54 Alternatively, the Working Group may ‘in exceptional circumstances’ decide ‘to discontinue the consideration of cases where the families have manifested, freely and indisput­ ably, their desire not to pursue the case any further, or when the source is no longer in existence or is unable to follow up the case, and the steps taken by the Working Group to establish communication with other sources have proven unsuccessful’.55 C Difficulties and Prospects It has to be observed that the number of cases recorded each year in the data­ base (both standard and urgent procedures included) far outstrips the num­ ber of cases clarified, closed or archived. The total number rises continuously from year to year. Worse still, the Secretariat is chronically overwhelmed by the number of cases and is unable to record them all in the database, includ­ ing sometimes at the initial stage – that is, with a view to presenting them to the Working Group for it to decide on their admissibility. This has resulted in a backlog of cases, which became very large in the early 2000s. That backlog gradually dwindled and was wiped out by 2009 but has grown again since 2011. By 2014, the Working Group still had a backlog of 100 or so cases – that is, 100 or so cases which, although they have reached the Secretariat, have not yet been presented to the Working Group for a determination on their admissibility. These fluctuations in backlog are not attributable to the Working Group itself but rather to the number of staff assigned to the Working Group’s Secretari­ at by the ohchr. With two or fewer staff, the Working Group simply cannot

52 53 54 55

unhrc (n 36) para 25. unhrc (n 36) para 27. unhrc (n 36) para 27. unhrc (n 36) para 28.

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operate at full capacity because there are a number of tasks that cannot be per­ formed by members who, by definition, as un volunteers, hold down full-time jobs besides their mandate. The Working Group has often pondered how to achieve greater efficiency in clarifying individual cases, with a view to better answering the desperate cry of families which, in some instances, place all their hope in the wgeid.56 In the early 2000s, the Working Group experimented with a ‘new approach’ based on the idea of mediation or friendly settlement between victims’ families and gov­ ernments.57 This approach was put into practice with Sri Lanka and led to the clarification of nearly 6,000 cases within a few years, a rate which was previ­ ously unheard of.58 However, it has to be observed that most of those ‘clarifica­ tions’ did not shed light on the fate or whereabouts of the disappeared persons. Rather, they resulted in fact from an agreement between the Government, families and the Working Group acting as a sort of mediator. This agreement resulted in payment of compensation in exchange for the relatives’ accepting a death certificate in the absence of any body. This approach has not been ad­ opted in other cases. It is doubtful whether it will be again. This is due to the fact that the members of the Working Group have reasserted many times since then their attachment to a clear separation between clarification and ‘closure’ or archiving, meaning that clarification must be based on ‘detailed informa­ tion’ about the fate or whereabouts of the disappeared person. In practice, the Working Group requires an address, if the person is alive, including the address of a place of detention, and a death certificate if the person is deceased. But in this latter situation, the Working Group checks, as has been the practice in the last few years, that the death certificate is based on identification of the remains of the disappeared person. Otherwise, the case is processed by the closure procedure. Conditions for closure were made

56

See especially the summary of discussions with States and ngo on the Working Group’s methods of work, unchr (n 19) paras 72ff, esp para 74: ‘Emphasis was placed on the need for the Working Group to obtain more concrete results, the lack of which had led to a tendency for relatives to shift their resentment against Governments to disappointment with the Working Group’. 57 See unchr ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (18 January 2002) un Doc E/CN.4/2002/79, executive summary and para 288. 58 See unchr ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (23 December 2004) un Doc E/CN.4/2005/65, para 303: Clarification of 5,377 cases among which 5,338 were clarified on the basis of information provided by the Government. un­ chr ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (27 De­ cember 2005) un Doc E/CN.4/2006/56, para 486: 1193 additional cases clarified.

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more stringent in 2008 and 2009: first, closure occurs primarily on the basis of a declaration that the person is missing ‘as a result of enforced disappear­ ance’ or failing that on the basis of a presumption of death (and not a death certificate).59 Second, closure cannot occur unless the relatives ‘or other in­ terested parties’ ‘have manifested, freely and indisputably, their desire not to pursue the case any further’.60 By ‘freely’, the Working Group means without any form of constraint, including financial constraint. Consent granted in ex­ change for compensation comes under suspicion in its essence insofar as the Working Group is aware that many families are quite destitute because of their relatives’ disappearance and see compensation from the State, in exchange for acceptance of a death certificate, as material support that they cannot reason­ ably do without. The truth of the matter is that the main cause of the inadequate number of clarifications is not primarily attributable to the Working Group. It is States that are primarily responsible for this. The Working Group does not have the resources to conduct its own investigations. It is up to States to investigate and more specifically to put in place special-purpose search mechanisms with sufficient resources and tried-and-tested methods, ranging from investiga­ tion by collection of testimony to exhumation and identification of remains. Of course, that does not exonerate the Working Group from attempting at all times to improve its methods. In fact, efforts must be made all round and solu­ tions can only be found through joint effort and open discussion among States, the Working Group and families. As Chair-Rapporteur, I made an appeal along these lines at the Working Group’s 100th Session held in New York in July 2013: We cannot say we are satisfied to have in our database more than 42,000 unclarified cases of enforced disappearances. As we have often said to the States with which we have regular dialogue: our dearest wish would be to resolve all the cases of enforced disappearance registered under that State. Our objective is to bring the truth to the families and to put an end to their suffering as fast as possible. Holding a case in our database is therefore a synonym of failure for the Working Group. Ways and means must be found in order to resolve the individual cases examined by the Working Group. But we must be clear: the Work­ ing Group acts in this regard in the strict framework of its methods of work, conceived to make sure that the clarification of a case is done in the

59 unhrc (n 36) Annex 1 para 22. 60 Ibid.

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absolute respect to the right to truth of the families of the disappeared. We will not accept any compromise in this respect: enforced disappear­ ance is an act of torture inflicted on families, families who have an abso­ lute right to know the truth regarding the fate or the whereabouts of their loved ones. How to move forward? It is up to States to reflect on this together with the Working Group and the representatives of the families of the disap­ peared. Plans could be made to bring together all parties around a table, with a view to exchanging best practices and devising methodologies al­ lowing the resolution of cases of enforced disappearances? This must be reflected upon.61 Methods of work are the ‘public’ side of the functioning of a Working Group. There are the written rules of procedures, known to the stakeholders, used to implement the mandate entrusted to the Working Group. But mastering the working methods is only part of what is required from a member of the Work­ ing Group. There are also numerous rules and/or practices which for the most are unwritten and which are crucial for the Working Group to function on a daily basis: these are the rules and practices on the ‘private life’ of the Working Group. The chapter will now turn to these. iii

The Private Life of the Working Group: Internal Rules and Practices

The rules and practices that make up the ‘private life’ of the Working Group could be called the ‘internal rules’ of procedure. A strange feature of these rules and practices is that they change over time – they are continuously reinvented. There are two reasons for this. First, as they are unwritten, they do not enjoy the same authority and stability as ‘working methods’. Second, as the members of the Working Group, as well as the members of the Secretariat change, rules and practices are altered. During my tenure, I discovered that there was a lack of continuity as far as rules and practices are concerned. This appeared to me to be both positive and negative. Negative because we spent quite of lot of time trying to reinvent ways of functioning when this work had already been done 61

ohchr ‘Countering Enforced Disappearances Today: Sharing Experiences and Building Strategies’ (100 Sessions of the Working Group on Enforce or Involuntary Disappearances, New York, 15 July 2013) accessed 12 February 2016.

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by our predecessors. Positive as it allowed us to keep the maximum flexibility and to avoid the syndrome of bureaucratisation which is an almost unavoid­ able consequence of working in the un environment. As we have seen, working methods are quite complex. Giving an account of the daily ‘private’ life of a Working Group is even harder, however. Below I offer insights on some of the more important issues that affect aspects of this daily life of the wgeid. I shall not deal with some more special aspects, which would require a study in itself, like visits to the field. Instead I discuss what I see as four core topics: first, chairing a Working Group; second, sessions; third, building cooperation with stakeholders; and finally, relations with others – in particular, with victims and human rights defenders. A Chairing a Working Group: Consensus Building or Peace-making? (i) The Role of the Chair-Rapporteur Every Working Group has a Chair-Rapporteur and may have one or two Vicechairs. It is obvious that there needs to be at least one Vice-chair to supplement the Chair in case he or she is absent or does not have the capacity to fulfil the mandate. The Chair represents the wgeid at a number of official occasions or meetings, the first of them being the presentation of its annual report to the Human Rights Council (hrc) and, until recently, to the Third Committee of the General Assembly. The Chair is the one who speaks out for the Work­ ing Group as a whole. He or she is generally the one who is invited to make a presentation in conferences organised by stakeholders − for instance, parallel events to hrc sessions. Most of the Working Groups also delegate their Chair to decide upon and sign press releases issued by the ohchr. At one point this became a problem in the wgeid, as members questioned the fact that the quotations cited in the press releases were attributed solely to the Chairper­ son and not to the Group as a whole. As a consequence, the wgeid decided that, contrary to the practice of other Working Groups, the name of the Chair would not appear and would be substituted by formulas such as ‘The wgeid noted that … and said that…’.62 This ceased however as the composition of the wgeid changed.63 It is, arguably, desirable that a collective body has one 62

63

See e.g. press release of 11 March 2014 on the case of Mr Somchai Neelaphaijit in Thai­ land, ohchr ‘Thailand: 10 Years After Somchai’s Disappearance, Family Still Awaiting Truth and Justice’ (ohchr, 11 March 2014) accessed 12 February 2016. See e.g. ohchr ‘Many Government Have More Information on the Number of Mo­ bile Phones than on the Number of Disappeared Persons’ (ohchr, 10 September 2015)

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representative, appearing as a figurehead and easily identifiable by stakehold­ ers and by the press. It is the practice that the Chair would also attend the annual meeting of mandate holders of Special Procedures – and would thus have the possibil­ ity to put forward his/her candidacy to become a member of the Coordina­ tion Committee of the Special Procedures.64 This practice has been subject to continuous criticism. There are good reasons for this: annual meetings are a fantastic opportunity for mandate holders to meet and discuss their expe­ rience, not only as ‘mandates’, but also as individuals. Others oppose such ­participation – in particular some ‘individual’ Special Procedures mandate holders, in the name of a certain conception of ‘equality’ which would impose that each mandate is represented by one individual. But, in my view, the only serious argument against having all the members present is financial – and this is largely supported by the Secretariat which insists that including all members of all Working Groups would represent a huge extra cost which is hardly justifi­ able in these times of crisis. Further with regard to the Chair’s role, most States’ representatives – par­ ticularly ambassadors – like to have direct contact with the Chair, rather than with the members. They appreciate having the Chair included in a country visit, although this is not always feasible, as each member generally does one mission once a year to allow a turnover between members. Finally, the Chair is in charge of the daily work of the Working Group. In this capacity, he or she is the privileged interlocutor of the Secretariat. Practically, there are almost daily contacts between the Chair and the wgeid’s secretary or other members of the Secretariat, either via email or by phone. This con­ tact is partly imposed by methods of work: the Working Group delegates to its Chair-Rapporteur the task of transmitting a number of communications, notably of all urgent communications (which include urgent cases and urgent appeals).65 But there are many other issues for which the cooperation between the Chair and the Secretariat is necessary, including the preparation of ses­ sions and other meetings, the preparation of country visits, and daily contacts with stakeholders. It is very clear that a Working Group chair must dedicate more time to the mandate than other members. The Chair is a primus inter

64 65

accessed 12 February 2016. For more on the Coordination Committee of the Special Procedures, see M’jid’s contribu­ tion to this collection. See paras 39–40 of the revised methods of work (n 41).

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pares. He or she is but one independent expert, just like his or her colleagues and deserving of no more respect than the other members. However, he or she undoubtedly has more responsibility and must show a great sense of dedica­ tion to the mandate. (ii) Appointing the Chair-Rapporteur In recent years, most of the Special Procedure Working Groups have decided to design rules for the election of their officers. This was widely discussed among members of all Working Groups during special meetings that took place paral­ lel to the annual meeting of mandate holders. In the end, all agreed that pre­ cise rules should be set, but all have adopted more or less different rules. The wgeid revised its methods of work in 2014. In doing so, it decided to include rules on elections. These rules had been previously drafted and used as ‘inter­ nal rules’ for some years – when it appeared that consensus was not always sufficient for the purpose of electing a new chair.66 The Working Group unfortunately had to use the voting procedures on several occasions in the context of electing a chair, whereas, in my opinion, consensus should have remained the rule. But the use of consensus – as we will see below – demands a lot of modesty and a sense of dedication from all members. These are required from those who must agree to withdraw in a case where there is a clear majority favouring one candidature, and from those who have remained in office for a certain period of time and who must voluntarily step down in order to let others put their energy, talents and new ideas at the service of the mandate. The majority of the wgeid has always maintained the position, rightly in my view, that rotation among members should not be auto­ matic and that considerations related to ‘equitable geographical distribution’ should not be set out as an absolute or an exclusive criterion. The determining factors for election as chair should be the commitment of the candidate and his or her readiness to dedicate sufficient time to the mandate. (iii) Governance by Consensus Special Procedures Working Groups are five-member bodies, which should make them an extremely efficient and flexible tool. The condition for achieving this capacity is consensus. It is not conceivable to have a five-member Working Group voting on each and every matter to be decided. The least divisive vote that a Working Group can achieve is a majority of three against two. But most of the time one member will find him or herself in the minority, with the four 66

See paras 64–5 of the revised methods of work (n 41).

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other members in the majority. Such votes create frustration among members, with the temptation to issue dissenting opinions – something which has rarely been done in the history of the Working Group. Those that have been issued have mostly been on procedural issues.67 For a chair to govern through major­ ity is neither healthy nor productive. It only increases divisions among mem­ bers and ruins the collective efficiency of the mechanism. But first, it must be clear what consensus means. Consensus is not unanim­ ity. Consensus is first and foremost a process; deciding by consensus means building consensus among members, which implies rounds of consultations and negotiations, in order to find a compromise position. The compromise position the Chair should be aiming at, however, is not the lowest common denominator (as is often said). Rather it is the solution that, while not raising the strict opposition of any member, best accommodates the interests of the mandate. Building consensus may be fast for easy matters, but it may take longer for complex or controversial issues. It is one of the major tasks – if not the major task – of the Chair. The Chair’s role is first to identify the issues which may divide members, and second to undertake a process of consultation in order to try to find a solution that would gather consensus. A basis for consensus build­ ing is mutual respect among members and between members and the Chair. Lack of respect for one’s opinion, summary dismissal of a valid argument or of a carefully-prepared position will always lead to frustration and in the end to a request for a vote. A well-chaired Working Group, working in harmony and consensus, is a great strength to the mandate. Not only are five persons instead of one com­ mitted to do the work, but it is enriched by a plurality of views, approaches, 67

There was a series of ‘separate opinions’ in relation to the length of the wgeid’s reports, which were drastically reduced to 32 pages in 1999 and 2000 and then re-expanded from 2001. This triggered opinions first from Diego Garcia-Sayan (unchr ‘Report of the Work­ ing Group on Enforced or Involuntary Disappearances’ (21 December 1999) un Doc E/ CN.4/2000/64, para 145) and Manfred Nowak (unchr ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (18 December 2000) un Doc E/CN.4/2001/68, para 128) and then from Ivan Tosevski (unchr ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (18 January 2002) un Doc E/CN.4/2002/79, 67; unchr ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (21 January 2003) un Doc E/CN.4/2003/70, 60), who favoured the 32-page format. See also the ‘per­ sonal opinion’ of Ivan Tosevski added to the wgeid’s comments on the Draft Internation­ al Convention on the Protection of All Persons from Enforced Disappearances: unchr ‘Report of the Working Group on Enforced or Involuntary Disappearances’ (18 December 2000) un Doc E/CN.4/2001/68, 36.

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cultures and competences. It is especially useful when dealing with countries from all continents; some experts have obviously more knowledge when deal­ ing with a particular region or a group of countries than others. And this great­ ly facilitates contacts and cooperation. On the contrary, an ill-chaired Working Group can become hellish. When a Working Group comes down to a collection of oversized egos, who do not want to make any effort to listen to the point of view of others, it can rapidly become impossible to work out. Deciding by consensus becomes particularly important during sessions, where a number of decisions must be taken in a limited time. B In Session The Working Group holds three sessions a year – spring, summer, autumn – two of them lasting one week (five days), and the third one a week and a half (eight days). The reason for the extra time for the latter is that it is the session where the annual report to be presented to the hrc is drafted and adopted. In any case, it is a short time to do an enormous amount of work. Sessions take place in the un premises, generally in Geneva but sometimes in New York or in other places.68 They are serviced by the Secretariat of the wgeid, and interpretation in un official languages is provided when needed, especially during meetings with States’ or other stakeholders’ delegations. Sessions are ‘formal’, in the sense that they take place in a formal setting, with the Secre­ tariat, conference services and interpreters present. Sessions are private for the most part, as matters dealt with by the wgeid are extremely sensitive and gen­ erally involve individual cases and issues of protection. The debates are fully recorded, even though no transcripts or summary records are produced. At the beginning of my tenure, the Secretariat used to produce informal transcripts of the sessions, based on notes taken by interns. But the Secretariat stopped the practice with the consent of the wgeid. I personally regretted it but ac­ cepted the underlying reasons, which were basically about saving time for 68

From 1981, the wgeid used to hold one session a year in New York. The practice stopped in 2003. Exceptionally the wgeid went back to New York, on the occasion of its 100th Session in July 2013. The wgeid has also regularly held sessions in the regions: San José, Costa Rica, 1984 (un Doc E/CN.4/1984/15, para 18); Buenos Aires, Argentina, 1985 (un Doc E/CN.4/1986/18, para 10); Bangkok, Thailand, 2005 (un Doc E/CN.4/2006/56, para 24); Buenos Aires, Argentina, 2008 (un Doc A/HRC/10/9, para 10); Rabat, Morocco, 2009 (un Doc A/HRC/13/31, para 10); Sarajevo, Bosnia and Herzegovina, 2010 (un Doc A/HRC/16/48, para 11); Mexico City, Mexico, 2011 (un Doc A/HRC/19/48/Rev.1, para 11); New York City, United States of America, 2013 (un Doc A/HRC/27/49, para 9); Buenos Aires, Argentina, 2015 (un Doc A/HRC/30/38, para 9).

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more pressing priorities – and these were many! We asked the un whether we could benefit – like un treaty bodies – from the transcription service and get summary records, but the response was negative. The problem with this lack of records is that we lose the memory of our ‘internal rules and practices’, which, as I said, are unwritten. We also lose institutional memory of our ‘precedents’, in particular of the rationale underlying our decisions on individual cases. It has happened several times that the wgeid had to re-discuss matters that had already been discussed and decided upon in the past, thus losing precious time – generally to come up with the same solution! During my tenure, the activities of the Working Group drastically increased. The wgeid adopted a great number of complex General Comments on certain aspects or articles of the Declaration for the Protection of All Persons against Enforced Disappearances.69 It started studying thematic issues.70 It also has endeavoured to carry out a thorough reflection on its methods of work which resulted in a number of important amendments and, eventually, a global revi­ sion in 2014.71 And it worked hard to progressively change the format of its report, with several proposals and long discussions which eventually ended up with concrete results in 2013–14.72 Finally, as the Working Group was becoming 69

During my tenure, the wgeid adopted six new General Comments: on enforced disap­ pearances as a crime against humanity; enforced disappearances as a continuous crime; the right to the truth in relation to enforced disappearances; the right to recognition as a person before the law, in the context of enforced disappearances; children and enforced disappearances; and women and enforced disappearances. See accessed 12 February 2016. 70 See unhrc ‘Best Practices on Enforced Disappearance in Domestic Criminal Legisla­ tion’ (28 December 2010) un Doc A/HRC/16/48/Add.3; unhrc ‘Reparations and Enforced Disappearances’ (28 January 2013) un Doc A/HRC/22/45, paras 46–68; unhrc ‘Enforced Disappearances and Economic, Social and Cultural Rights’ (10 August 2015) un Doc A/ HRC/30/38/Add.15. 71 See revised methods of work (n 41). 72 There have been several proposals in order to make the wgeid’s report more informative and reflective of the state of enforced disappearances in the world but none gathered the necessary consensus. The process was, however, accelerated because of more technical problems. Following the wgeid’s decision not to limit itself to the 32-page limit reques­ ted by the General Assembly and to revert to its previous practice, with a report of over 100 pages (which triggered Ivan Tosevski’s dissent (n 67)), the wgeid requested each year a dispensation from the translation services, so as to have the report as a whole translated in the six un official languages. This was questioned by the un administration in 2013, with the result that the country sections of the 2012 report were not translated and were issued only in English (see unhrc ‘Report of the Working Group on Enforced or Involun­ tary Disappearances’ (28 January 2013) un Doc A/HRC/22/45, para 5). Taking note of the unog’s refusal to translate the document as a whole, and the lack of support of the High

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ever more visible, it attracted more requests for meetings during its sessions from various stakeholders and those meetings progressively took an increasing part of its session time. The only way to address this increasing workload was to improve our pro­ ceedings. In my view, consensus was key to this. Discussing a controversial ­issue for the first time in formal session is generally a waste of time. Formal settings attract ‘statements’, rather than open and reasoned questioning, which is more likely to take place in an informal setting. And there is a risk that addressing an issue in a formal context will result in protracted debate with positions being frozen, thereby reducing the chance of an evolution in views for quite a long time. This demonstrates the importance of trying to build consensus on such is­ sues before the session starts – or during the session in an informal way – before discussing it in formal session. The setting up of the agenda of the session is crucial to that session’s success: it may be useful to defer the consideration of certain issues to the end of the session, so as to allow time for consultations between the members. And of course if, despite those precautions, discussions get controversial, experience demonstrates that a coffee-break is generally a good way through! We also tried to improve our proceedings with regard to cases. Previous­ ly, all cases were reviewed one by one during the session, which took a lot of time. Various possibilities were explored so as to avoid such a lengthy process. The basic idea was that instead of reviewing all the cases in session we should only review and discuss those that were, for any reason, problematic or which called for a particular discussion from the wgeid. An advantage of proceeding in such a way was to identify well in advance so-called problematic cases, and thus possibly to allow the Chair to undertake some consultations so as to try to find a consensus well in advance of the session. Similarly, as Chair, I tried as much as possible to avoid undertaking draft­ ing exercises during a formal session. Drafting is always cumbersome and ­complicated and can only be done properly in an informal setting on the basis of a single text in one language (which would generally be English). And as Commissioner to the wgeid on this, the wgeid decided that it would from now on is­ sue ‘post-sessional reports’ containing country’s sections with a summary of the Working Group’s activities on these countries during the session and, when appropriate, texts of General Comments or other documents (e.g., revised methods of work) adopted during the session. It was decided that these post-sessional reports would then be supplemented by an annual report, which would contain a summary of the activities during the year, possibly a thematic study (which may also be placed in annex to the main document), tables on cases and other communications, and more substantive observations on each country’s situation.

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obvious as this may seem to well-trained diplomats, it is not necessarily so for people who, like many independent experts appointed as mandate holders, are not accustomed to the practice of negotiation and standard setting. C Building Cooperation with Stakeholders Special Procedures are cooperative procedures. By that it is meant first that legally they operate on the basis of the obligation of States to cooperate in good faith with the United Nations in the field of human rights, as stated in articles 55 and 56 of the un Charter. But it also means that they cannot oper­ ate efficiently without the cooperation of States. Certainly it could be said that Special Procedures have an added value in publicising, with un authority and legitimacy, allegations of violations of human rights, and strengthening the naming and shaming activity of human rights activists and nongovernmental organisations (ngo). But this would only be of limited added value if it did not in turn lead States to cooperate with un mechanisms and civil society with a view towards taking concrete measures in order to respond to criticisms and improve the situation. (i) Virtuous Cycle of Cooperation A virtuous cycle of cooperation could be mapped out as follows: – Starting point: there is no cooperation between the government and civil society on the search for persons who may be victims of enforced disappearances. – Domestic civil society organisations (cso), possibly supported by interna­ tional ngo, transmit allegations (individual cases or general allegations) to one or several un mechanisms, including the wgeid. – The wgeid transmits those allegations to the State concerned, asking for its cooperation in solving those matters (either taking necessary steps to locate the disappeared person(s) or taking the necessary measures to address is­ sues in relation with the implementation of the Declaration). – The State agrees to cooperate with the wgeid through various means (for example, replies to the wgeid’s queries, meetings followed with recom­ mendations from the wgeid, onsite visits). – The wgeid’s recommendations are accepted by the government which agrees to report on their implementation and to cooperate with domestic civil society (very often associations of families of the disappeared in this case) to that end. – The government, as well as domestic cso, report on the implementation of the wgeid’s recommendations and on further issues to be resolved.

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No cooperation between State and CSO at domestic level

CSO sending allegations to WGEID

WGEID transmitting to government

State cooperating with WGEID WGEID making recommendations

State implementing recommendations and cooperating with CSO

WGEID supervising implementation. Inputs from State and CSO

Figure 8.1 A virtuous cycle of cooperation

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Of course, this is only a theoretical, model situation. However, aiming at realis­ ing such a model is probably the best way to achieve concrete results. A condi­ tion for this is the building of cooperation with both States and cso. This may appear in some situations as a contradiction – for instance, when there is a situ­ ation of direct conflict between a government and a local ngo. One could argue that building cooperation with States is more important than building coopera­ tion with cso, as the un is first and foremost an intergovernmental organisa­ tion. Certainly States are major players and not much can be achieved without their cooperation. But at the same time, there are few examples of anything concrete and useful being achieved without the cooperation of local cso. This is because they are the ones who will be able to monitor, on a daily basis, the progress made by States in the implementation of recommendations. This is also because they are generally the most knowledgeable people on issues to be addressed and should be included from the beginning in the process of clarify­ ing facts, conceiving appropriate recommendations and implementing them. I can recall a number of processes where we had good cooperation from the government, but eventually nothing happened, either because civil society was not sufficiently involved or because it was too weak, persecuted, or even nonexistent due to continuous pressure and repression by the government. (ii) Building Cooperation with States Building cooperation with States is not only about exchanging notes verbales and other communications. It is also about personal links and contacts. A first step is to get to know the ambassador and other people in charge of human rights issues at the country’s mission in Geneva. Building trust between the members of the Working Group and the ambassador is key to success; apart from some circumstances in which the decision comes from the capital, it is generally the ambassador in Geneva who will ultimately trigger cooperation on the part of his or her country with the un mechanism and will recommend the level at which this cooperation should take place. In particular, most of the time, the ambassador plays an important role in a State’s decision to invite a Special Procedure for a country mission and to prepare the ground for this country mission. It can even happen that one ambassador or another diplomat from the mission travels to the country when the Working Group undertakes its mission in order to see that everything goes smoothly and that the perspec­ tive from the delegation in Geneva is well understood by the different agencies and bodies of the State met by the wgeid during the mission. Building trust starts with informal meetings, generally at the request of the Working Group. It can continue with a formal meeting during a session and then with a formal meeting with a delegation coming from the capital, and accompanied by the ambassador. This will certainly result into a deeper

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understanding between the two parties. And it may – or may not – result in con­ crete steps taken on the part of the State to achieve the goals of the mandate. It is very clear that cooperation does not mean success. States may cooper­ ate because they want to ‘appear’ cooperative.73 It is for the Working Group to take responsibility and to know when cooperation must be interrupted, be­ cause such ‘cooperation’ has reached the point where it is solely serving the State’s interests, rather than those of the victims. (iii) Building Cooperation with cso Building cooperation with cso may seem easier but can ultimately prove not so simple. First, it sounds like a truism that cso are willing to cooperate with and use Special Procedures to their ends. But it is not always so obvious in practice. It may happen that cso in a country have other strategic goals or tactical plans. For instance, they may well focus their efforts on using regional bodies, and may not clearly see the added value of presenting their case to a un body. Alternatively, they may simply be too busy with their domestic activities to engage seriously with an international body at all. It may also happen that cso decide to engage with a Special Procedure in the preparation of a visit, but then fail afterwards to monitor the implementation of the mission report recommendations. I was personally disappointed several times, having worked intensively with cso both in the preparation and during the course of a visit, by their lack of engagement in the follow-up to the process. Short-termism is unfortunately not the monopoly of governmental actors. D Relations with Others: Victims and Human Rights Defenders In this section I would like to address the day-to-day interactions that a Work­ ing Group like the wgeid has with others. I will in particular deal with those involving victims and human rights defenders. I will not deal with three other aspects which would require a study for themselves; that is, the wgeid’s rela­ tionship with the ohchr,74 the hrc75 and other Special Procedures.76 73 74

75 76

For more on this point, see the contributions of Gaer, and Freedman and Crépeau to this collection. This in particular raises the question of the dual role of the ohchr, both as the Office of the un High Commissioner for Human Rights – a human rights body in its own right – and as a ‘secretariat’ in charge of supporting un bodies. For more on this point, see Con­ nors’ contribution to this collection. This includes the issue of the links between Special Procedures and the hrc – and in par­ ticular how the hrc reacts (or not) to information provided for by the Special Procedures. This touches upon the issue of coordination between Special Procedures mandate ­holders and, in particular, upon the issue of the role of the annual meeting of Special

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(i) Engaging with Victims: The ‘welcoming culture’ Part of the wgeid’s mandate is to assist the families of the disappeared in their quest for truth, justice and reparation. The wgeid’s mandate is thus from its origins a victims-oriented mandate. I am not sure however that everything has always been done to translate this orientation into reality. In practice, the wgeid’s members and the members of the wgeid’s Secre­ tariat are constantly in contact with victims. Part of the sessions are devoted to meeting with victims, principally families and relatives of the disappeared and, occasionally, survivors of enforced disappearance who are still coping with the aftermath of the crime. Similarly, a great part of the wgeid’s visits in the field focus on meeting with victims. It is however striking that although meeting with victims and dealing with victims represents an extensive part of the time of the wgeid and members of the Secretariat working with them, there has never been any thorough reflec­ tion on the various dimensions of a victim-oriented perspective. This touches upon the issue of protection against reprisals, which I discuss below, but more generally it is about reflecting upon what the condition of being a victim rep­ resents, and how someone whose mission is supposedly to help should behave when dealing with victims. Some people are more ‘gifted’ than others when it comes to human relations and it is my experience that attitudes towards victims vary from one person to another. A colleague once told me during a mission that he was not differ­ entiating between victims and the other people we interviewed, be they ngo professionals or government officials; in his view, all of these people were there to provide us with information so that we could fulfil our mandate. I was in complete disagreement with that statement. And in fact in the particular cir­ cumstances in which it took place, it deeply affected me, as every day we had to meet and hear the testimony of relatives of disappeared persons who were still literally destroyed, emotionally and sometimes physically, ravaged with fear, anxiety, remorse and doubt, due to the disappearance of their loved ones that had occurred sometimes 15 years before. In contrast to my colleague, I thought that speaking to a victim was in no way similar to speaking with a well-trained professional from an ngo. And I naturally adapted my behaviour, guided both by my sensitivity and compassion and by the experience of having previously worked together with victims while volunteering for an ngo. I thought in par­ ticular that recognising verbally that the person was a victim, and expressing compassion – that is not pity, but understanding of the person’s pain – was a Procedures and the Coordination Committee. For more on the Coordination Committee, see M’jid’s contribution to this collection.

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necessary preliminary to our discussion with victims. Similarly, for instance, I took great care to let the person speak without intervening too frequently. I tried to limit my questions, and to demonstrate my capacity to listen, even sometimes for a long time, without interrupting the person, except if it was absolutely necessary due to time constraints, or due to the need to give equal time to a number of victims being on an equal footing and all having an equal right to speak and testify. But what disturbed me throughout all my years on the Working Group was that I was uncertain about whether I was doing ‘the right thing’. I was in fact in need of proper training which was not provided for by the un. In September 2014 a seminar was organised in Berlin on ‘The Meaning and Implementation of Victims Orientation in the Treaty Bodies of the United ­Nations’.77 The seminar provided an opportunity for people with different backgrounds to meet and exchange their experience and their understandings of ‘victim orientation’. An idea that came up during the dialogue was the need to develop a ‘welcoming culture’ towards victims within the un. This idea gave a name to a number of things we had tried to do, albeit in an unarticulated and incomplete manner. For instance, it made me think of the way we ‘welcome’ people who are meeting us in sessions. As I noted earlier, sessions are very formal. Of course, there are only five of us. However, once one adds to this the members of the Secretariat (from two to five people), this is quite a consider­ able number of people who may be unknown to the visitors. The rooms of the Palais des Nations themselves are quite big and are an austere place to meet. The topology of the place might in itself have a psychological effect, as wgeid members sit on one side of the room and the visitors are seated in front of them. This arrangement inevitably puts us in a position of authority and may even be perceived as a sort of tribunal setting, with the experts-judges listening to witnesses. Some of us felt all of this and tried to mitigate these potential psychologi­ cal effects of a formal session. For instance, we ‘welcomed’ the visitors at the room’s door and, with a smile, invited them to take a seat. As Chair, I would also always say a word of welcome and also expressly acknowledge the fact that the person in front of us had been victimised. I would explain that we were here

77

See German Institute for Human Rights/Nuremberg Human Rights Centre, ‘Expert Con­ ference: The Meaning and Implementation of Victim Orientation in the Treaty Bodies of the United Nations’ (German Institute for Human Rights 2015) ac­ cessed 9 March 2016.

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to try to help but I would also explain the limits of our mandate, power and capacity, so as not to create false expectations. In some contexts, I would make clear that we were not un civil servants, but independent experts, fulfilling this mandate on a voluntary basis and part-time. All of this may have been helpful and I am glad that we tried our best to give meaning to the victim orientation of our mandate. However, I feel that there is a real need for greater professionalism in this regard. In particular, I supported the Berlin seminar’s recommendation that ‘all experts and staff working for the various entities of the ohchr should receive regular training’ on how to incorporate a ‘welcoming culture’ while fulfilling their mandates.78 (ii) Protection against Reprisals As civil society gains greater influence and is having its voice heard at the in­ ternational level more and more, States are replying with more legal restric­ tions, but also with moral or physical attacks aimed at deterring people from defending their rights or the rights of others. The phenomenon of threats, in­ timidations and reprisals is certainly not new, but has grown significantly over the last 15 years.79 Special Procedures have addressed these instances consis­ tently, by sending urgent appeals on behalf of persons cooperating with them, and more generally on behalf of ‘human rights defenders’. The wgeid has for its part developed a specific ‘method of work’ to address these situations: the ‘prompt intervention letter’.80 In my experience, this method has proved quite efficient: the rapid reaction by a Special Procedure generally deters a State from ‘striking hard’ and pre­ vents further serious attacks. More than that, it helps to change the perception that legality is always on the side of the State and that the human rights de­ fender is thus a delinquent: if these persons are protected, it sends the message that their activity is legal according to international law and that they should not be treated as delinquents by the State. However, the growing pressure on human rights defenders in a number of countries calls for an even stronger and 78 79

80

Ibid 22 and 26. See the reports by the Secretary General as requested by the Commission on Human Rights and then the hrc on ‘Cooperation with the United Nations, its Representatives and Mechanisms in the Field of Human Rights’, and in particular the 2015 report (17 Au­ gust 2015) un Doc A/HRC/30/29. See also the first report of Mr Michel Forst as Special Rapporteur on Human Rights Defenders, underscoring ‘global trends pointing to a threat­ ening environment for defenders’ (30 July 2015) un Doc A/70/216. For more on this point, see Lynch’s contribution to this collection. See revised methods of work (n 41) para 32.

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certainly more centralised reaction. It was thus a positive step when, in 2014, the un Human Rights Council adopted Resolution 24/24 which provided for the creation of a un focal point on reprisals. iv

Conclusion

In the end, has a Working Group proved to be preferable to an individual rap­ porteur in order to fulfil the mandate of assisting families of the disappearance in their quest for justice, truth and reparation? In 1999, in the course of the socalled ‘Selebi reform’, a proposal was made to transform the two main Working Groups – on enforced disappearances and on arbitrary detention – into Spe­ cial Rapporteurs. The proposal was ultimately not endorsed by the Commis­ sion, which was seen as good news by human rights defenders and families of victims.81 Rightly or not, Working Groups are generally considered as an added strength to a mandate, or at least as an acquis that should not be put into question. In the case of those two Working Groups, this certainly holds true, for the simple reason that a major part of their mandate is to deal with individual ­cases and to take decisions upon them – and deliberation among several experts is objectively an asset in this type of activity. Still, this asset can only transform into positive results if the Working Group is following sound working methods and internal practices, and is well managed by a responsible Chair constantly aiming at building consensus among the members. Another important dimension is the constant attention given to improving the meth­ ods of work, as new issues arise. Freedom to devise their own methods of work is, generally, key to the success of Special Procedures. The wgeid has done a great deal in the recent years to adapt its working methods. Still, challenges remain. The Working Group will have to decide if and how it will handle cases of enforced disappearances attributable to nonstate actors. It will also have to face its limits when dealing with situations such a Syria, where transmission of individual cases to the government is not a proper course of action, as the disappeared or the sources may in fact face reprisals as a consequence. In such situations, the Working Group should co­ operate closely with other mechanisms, including commissions of inquiry es­ pecially set up to deal with such situations where crimes against humanity and other serious crimes are committed. It should also devise new and special

81

See O de Frouville, ‘Les organes subsidiaires de la Commission’ in E Decaux (eds), Les ­ ations Unies et les droits de l’Homme: Enjeux et défis d’une réforme (Pedone 2006) 180. N

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methods of work, like for instance the filing of cases without transmission. In doing so, it can continue to play the role which has proven, throughout the years, to be the most precious to victims and to the international community as a whole – that of an international register of persons who are victims of enforced disappearances, thereby keeping the trace and the memory alive of those who, otherwise, may disappear into oblivion.

chapter 9

Special Procedures in the Digital Age Ella McPherson and Thomas Probert Abstract In this chapter, the authors outline the implications of information and communi­ cation technologies (ict) for Special Procedures’ working methods to protect and ­promote human rights. They focus in particular on mandate holders’ formal commu­ nications, though many implications of the use of ict apply more broadly to Special Procedures’ work. The communications mechanism allows victims or those acting on their behalf to submit petitions documenting human rights violations to Special Procedures, who then evaluate these submissions and convert those deemed action­ able into confidential communications to implicated States. ict have the potential to transform the communications mechanism by supporting Special Rapporteurs in raising awareness of their mandates and by providing a broader range of channels for victims to submit complaints. With these opportunities, however, come risks that are both familiar and unprecedented in their extent – including those related to inequal­ ity, security, verification, and trust. In this chapter, the authors overview ict’s implica­ tions for each stage of the communications mechanism and make recommendations for Special Procedures on how they might mitigate associated risks. They conclude that the system would benefit from further judicious investment in digital literacy.

Keywords communications mechanism – information and communication technologies – verifi­ cation – social media – digital literacy

i

Introduction

The established practices of un Special Procedures, like those of the wider hu­ man rights community, are being challenged by the rise of information and

* This work was supported by the Economic and Social Research Council [grant number ES/ K009850/1 to Ella McPherson].

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004304703_011

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communication technologies (ict). Special Procedures mandate holders need to be able to embrace the opportunities that new ict – namely the hardware and software that facilitate the production, storage, transmission and recep­ tion of digital information – can provide.1 If used sensitively, it seems ict pre­ sent an opportunity to increase the pluralism of participation in human rights protection and promotion, and thus strengthen one of the core aims of human rights.2 An early example of this opportunity came in 2009, when the Special Rap­ porteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston, and then in 2010 his successor, Christof Heyns, were approached with mobile phone footage purporting to show grave human rights violations in Sri Lanka. After evaluating the footage, both Special Rapporteurs called on the Sri Lankan Government to investigate the documented executions.3 Without the mobile phone, this documentation would not have been possible, yet the use of this footage was not without its challenges.4 Based partly on this experience, and building on Alston’s earlier work on the topic,5 Heyns chose to dedicate one of his 2015 thematic reports to the question of how ict could be used better to secure human rights, focussing in particular on the right to life.6 The report was well received by the Human 1 DJ McKenzie, ‘Youth, icts, and Development’ (World Bank, 2007) accessed 28 January 2016. 2 MK Land, ‘Democratizing Human Rights Fact-Finding’ in P Alston and S Knuckey (eds), The Transformation of Human Rights Fact-Finding (oup 2016); E McPherson, ‘Digital Human Rights Reporting by Civilian Witnesses: Surmounting the Verification Barrier’ in RA Lind (ed), Producing Theory in a Digital World 2.0: The Intersection of Audiences and Production in Contemporary Theory, vol 2 (Peter Lang Publishing 2015). 3 T Probert, ‘Pursuing Accountability in the un Human Rights Council for Violations of the Right to Life in Armed Conflict’ in D Kuwali and F Viljoen (eds), ‘All Means Necessary’: Protecting Civilians and Preventing Atrocities in Africa (Pretoria University Law Press, forthcoming). 4 For technical analyses of the verification of the video evidence, see ‘Technical Note Prepared by the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Mr Philip Alston, in Relation to the Authenticity of the “Channel 4 videotape”’ (January 2010) accessed 11 February 2016; un Human Rights Council (unhrc) ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns: Addendum’ (27 May 2011) un Doc A/HRC/17/28/Add.1, Appendix. 5 unhrc ‘Interim Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston’ (23 August 2010) un Doc A/65/321, paras 3–11. 6 unhrc ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Execu­ tions, Christof Heyns: Use of Information and Communications Technologies to Secure the Right to Life’ (24 April 2015) un Doc A/HRC/29/37.

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Rights Council; many States expressed agreement with the observation that ict were transforming various dimensions of human rights work, and several underlined the report’s key recommendation to the Office of the un High Com­ missioner for Human Rights (ohchr) that it develop its capacity to evaluate digital evidence so as to support both the High Commissioner and the Special Procedures mechanisms.7 In this chapter, drawing on the research we contributed to Heyns’ report, we outline ict’s implications for Special Procedures’ practices to protect and promote human rights. We concentrate on mandate holders’ formal commu­ nications, though many implications of the use of ict apply more broadly to Special Procedures’ working methods. The communications mechanism is an element of the monitoring role of Special Procedures, in which they support States in their human rights responsibilities through pressing for ac­ countability and preventing violations by recommending reforms.8 Victims or those acting on their behalf may submit petitions documenting human rights violations to Special Procedures, who then evaluate these submissions and convert those deemed actionable into communications to implicated States.9 ict have the potential to transform each of these three stages, but with each opportunity come risks that are both familiar and unprecedented in their ex­ tent. We outline ict’s potential consequences for each stage in turn and make recommendations for Special Procedures on how they might mitigate associ­ ated risks. ii

Petitioners’ Submissions

Special Procedures provide official guidelines for petitioners on submitting information, asking that they transmit it via postal mail, fax, or email to an

7 un Web tv, ‘Clustered id: sr on Executions & wg on Discrimination – 16th Meeting 29th Reg­ ular Session of Human Rights Council’ (un Web tv, 19 June 2015) accessed 11 February 2016. 8 ohchr ‘Manual on Human Rights Monitoring’ (ohchr, 2011) 4 accessed 28 January 2016. 9 For a detailed explanation of the communications mechanism, see M Limon and T Piccone, ‘Human Rights Special Procedures: Determinants of Influence. Understanding and Strength­ ening the Effectiveness of the un’s Independent Human Rights Experts’ (Universal Rights Group, March 2014) accessed 28 January 2016.

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urgent appeals address. Some provide questionnaires that steer petitioners to­ wards the provision of information specific to their mandate, but all ask for a minimum of information in order for the petition to be considered for evalu­ ation.10 We would argue that with the rise of ict, Special Procedures will see an escalation in the variety and volume of petitioners as well as in the variety of formats and channels by which petitions are made. Historically, knowledge about the communications mechanism has been sparse, so an escalation in the variety and volume of petitioners would be a positive change11 – though, of course, this escalation may challenge Special Procedures’ oft-stretched capacities. ict that can connect mandate holders with potential petitioners offer an opportunity here. By publishing, interact­ ing and networking on social media, for example, mandate holders can build awareness not only of their mandates but also of the work Special Procedures do and its relevance for the victims and witnesses of violations. Mandate hold­ ers should note, however, coverage gaps arising from the uneven adoption of ict among and within populations; for example, the number of Twitter users per capita is correlated with gdp per capita.12 An ict-enabled rise in the variety of petitioners would be in line with wider trends in the human rights fact-finding arena. We are now in the ‘third generation’ of human rights fact-finding, a generation born of ict and char­ acterised by a growing number and diversity of players – in contrast to the first ­generation, dominated by intergovernmental organisations, and the sec­ ond generation, dominated by large, international human rights nongovern­ mental organisations (ngo). This third generation is also characterised by an ict-­fuelled proliferation in the formats of human rights information and evidence.13 Despite Special Procedures’ official guidelines for petitioners, they can expect to be contacted via any communications medium in which they 10

11 12 13

This includes details of the victim(s); location, date, and description of the documented event; details and possible motive of the perpetrator(s); petitions made to and actions of other national and international agents, if undertaken; and details on the petitioner, which are confidential. See ohchr ‘Special Procedures of the Human Rights Council: Urgent Appeals and Letters of Allegation on Human Rights Violations’ (ohchr) accessed 28 January 2016. Limon and Piccone (n 9) 28. D Mocanu and others, ‘The Twitter of Babel: Mapping World Languages through Micro­ blogging Platforms’ (2013) 8 PLoS ONE e61981, Figure 3. P Alston, ‘Introduction: Third Generation Human Rights Fact-Finding – at the Annual Meeting of the American Society of International Law’ (2013) 107 asil Proceedings 61, 61–62.

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have a p ­ resence, in any format supported by that medium. Of course, some of these mediums, such as Twitter with its strict character limit, are at odds with the extensive information required by Special Procedures, but they can be gateways for interactions leading to formal petitions. Some formats, like the mobile phone video mentioned above, may be departures from the usual evidence received by mandate holders, complicating the evaluation of these petitions – a challenge we return to in the next section. Furthermore, many of these mediums and formats create new security risks for petitioners. Digital literacy concerning security is not as high for human rights defend­ ers as one would hope, which is understandable given the time and effort re­ quired to keep abreast of new developments;14 it seems reasonable to suspect that in many cases it is even lower for civilian witnesses. Special Procedures therefore cannot assume that petitioners are aware of the risks they create for themselves when they submit information digitally, and, given the experiences human rights defenders have had around the world with surveillance, these risks can be significant. In the spaces where Special Procedures ask for civil­ ian witnesses to submit information via the ohchr’s urgent appeals email address, they should therefore also point them to resources on how to do so securely.15 In the preparation of our research for the Special Rapporteur’s report, we learned that, over the past several years, ohchr has been building an updated mechanism for petitioners to submit information to Special Procedures – a welcome development, given the challenges outlined above. This modified questionnaire will be designed so as to lower thresholds to participation, offer greater security to the individual submitting information, and make the con­ tent of submissions more useable. iii

Special Procedures’ Evaluation of Submissions

The proliferation of information from the field produced and transmitted with the aid of ict enhances fact-finding not just because it enables a greater 14 15

S Hankey and D Ó Clunaigh, ‘Rethinking Risk and Security of Human Rights Defenders in the Digital Age’ (2013) 5 Journal of Human Rights Practice 542. unhrc (n 6) para 98. Examples of guides tailored to human rights defenders include Surveillance Self-Defense, produced by the Electronic Frontier Foundation, and Security in-a-Box, by Front Line Defenders and the Tactical Technology Collective. Of course, civil­ ian witnesses should also be cautious with deploying these technologies as this has been used to identify and target individuals.

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variety of petitioners, but also because it helps fill what traditionally have been informational gaps. These may arise because fact-finders cannot visit the ­location in question, either because of security risks16 or because the corre­ sponding State has not issued an invitation.17 They may also emerge in rapidly unfolding situations where fact-finders are not yet on the ground. That being said, this ict-fuelled proliferation of information also poses challenges for Special Procedures’ evaluation practices. Little transparency exists around how mandate holders select the peti­ tions they will transform into communications to States, in part because this selection process is at the discretion of each mandate holder.18 However, in general, ict-enabled information from the field creates similar problems for Special Procedures to those it creates for the wider human rights fact-finding community. One such problem is volume;19 it is possible that a swelling tide of digital petitions will swamp the resources mandates have for fact-finding. In this case, Special Procedures can turn to ict to manage the information and workflows related to submissions and communications, boosting transpar­ ency in the process.20 Workflow management technologies can also support the security of digital information by mitigating the risks of data corruption and deletion, the latter particularly a problem when content contravenes the community standards of social media applications.21 A second problem is the complication of information verification, whether this information is part of a submitted petition or is information used to cor­ roborate a petition. Mandate holders are instructed, in their Code of Conduct, to ‘rely on objective and dependable facts based on evidentiary standards that are appropriate to the non-judicial character of the reports and conclusions

16 17 18

19

20

21

unhrc (n 5) para 4. Limon and Piccone (n 9) 24. T Piccone, ‘Catalysts for Rights: The Unique Contribution of the un’s Independent Ex­ perts on Human Rights’ (Foreign Policy at Brookings 2010) para 28 accessed 28 January 2016. E McPherson, ‘icts and Human Rights Practice: A Report Prepared for the un Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions’ (University of Cam­ bridge Centre of Governance and Human Rights 2015) 15. Limon and Piccone (n 9) 38. For example, Martus, developed by Benetech, and Open Evsys, developed by huridocs, are open source, no cost information management tools designed for human rights defenders. M Bair, ‘Navigating the Ethics of Citizen Video: The Case of a Sexual Assault in Egypt’ (2014) 19 Arab Media & Society 1, 3.

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they are called upon to draw up’.22 While the specifics of evidentiary standards may vary depending on whether the information is being evaluated for use in Special Procedures communications, ngo advocacy, or the courtroom, in gen­ eral verification involves the corroboration of information with other methods and sources. Specifically, it is the information’s content and metadata – namely data about the information, such as the place, time and source of production – that are corroborated, and it follows that the more metadata available, the easier corroboration is. The verification challenge presented by digital infor­ mation is that the structures and affordances of the ict with which it is pro­ duced and transmitted can alter and restrict the metadata that accompanies the information.23 For example, though mobile phone cameras can embed metadata such as time and location of production, social media applications tend to strip these details out at the point of upload. This feature, as well as social media users’ ability to create pseudonymous accounts, facilitates the disembodiment of information from the context of its production.24 The dis­ embodiment affordance also enables the manipulation of metadata, as when YouTube videos are scraped and re-published with different claims as to their locations, dates and subjects.25 The potential for metadata paucity, as well as the risk of manipulation, un­ derscore the importance of developing and deploying robust and defensible digital verification practices. Though the basic tenets of verification do not change with the introduction of digital information, the relevant tactics and tools do evolve relatively rapidly – as do the regulations and features of the largely commercial technologies on which the production and transmission of this information depends. This shifting terrain requires a level of expertise to master confidently, and, as mentioned above, Special Rapporteur Heyns has recommended that the ohchr employ an expert in the evaluation of digital evidence. This appointment would likely be of significant benefit to Special

22 23

24

25

unhrc Res 5/2, ‘Code of Conduct for Special Procedures Mandate holders of the Human Rights Council’ (18 June 2007) un Doc A/HRC/RES/5/2, annex, art 8(c). C Koettl, ‘Citizen Media Research and Verification: An Analytical Framework for Human Rights Practitioners’ (University of Cambridge Centre of Governance and Human Rights 2016) 12. E McPherson, ‘Advocacy Organizations’ Evaluation of Social Media Information for ngo Journalism: The Evidence and Engagement Models’ (2015) 59 American Behavioral Scien­ tist 138. For an example of one such case, see M Bair and V Maglio, ‘Video Exposes Police Abuse in Venezuela (Or Is It Mexico? Or Colombia?)’ (Witness) accessed 28 January 2016.

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Procedures evaluating digital information for transformation into communi­ cations to States, especially if accompanied by more thoroughgoing efforts on the part of mandate holders and staff supporting them to enhance their own digital verification literacy.26 iv

Special Procedures’ Communications to States

Special Procedures evaluate submissions with an eye towards sending related communications to States. These communications take two forms, namely ur­ gent appeals, which detail imminent or anticipated grave violations, and al­ legation letters, which address past violations.27 These letters, without making accusations, request that an investigation take place and that the outcomes be communicated to the Special Rapporteur. The communications remain confi­ dential for several months before being published as part of a digest presented to the Human Rights Council at every session. However, mandate holders may decide to take additional measures when they deem the state responses to be inadequate, when new information surfaces, or when the urgency of the situ­ ation warrants it. Though the communications are generally sent through dip­ lomatic channels, these additional measures may involve press releases and conferences.28 Mandate holders tread carefully, however, when speaking with the me­ dia, as historically this has been a significant cause of soured relationships between Special Procedures and States.29 The Special Procedures’ Manual of Operations states that mandate holders should, in all cases, first deploy the communications mechanism before engaging the media and should give the State in question advance warning of any press interactions, as well as the con­ tent of any press releases.30 These measures are intended to create trust be­ tween Special Procedures and States.31 That being said, it is important to note 26

27 28

29 30 31

Examples of resources for digital verification literacy include Amnesty International’s Citizen Evidence Lab () and the European Journalism Cen­ tre’s Verification Handbook (). Limon and Piccone (n 9) 28. ohchr ‘Manual of Operations of the Special Procedures of the Human Rights Council’ (ohchr, 2008) para 28 accessed 28 January 2016. Limon and Piccone (n 9) 32. ohchr (n 28) paras 50–51. Limon and Piccone (n 9) 32.

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the increasing salience of the media role for contemporary working methods of many of the mandate holders; they are no longer primarily rapporteurs to the Human Rights Council but rather are now also thought of as the desig­ nated voice within the un on a particular subject. In general, Special Procedures should be circumspect about their use of ict such as social media in concert with their communications work. The same considerations as apply to their use of the mainstream media should apply here, namely that information related to the communications should only be posted online if and when the information has been made available to the press. This approach stands in contrast to the behaviour of their colleagues at human rights ngo, many of whom have embraced social media for their ad­ vocacy work, using it for direct targeting and for public mobilisation.32 It also runs contrary to the dominant cultures of social media, often characterised by speed, informality and spontaneity – not by deliberateness. These character­ istics of social media layer on additional risks for the human rights commu­ nity at large, as they increase the likelihood of error – anathema to institutions whose power depends on their credibility. v

Conclusion

As outlined in this chapter, ict can provide significant opportunities for S­pecial Procedures with reference to their communications mechanism. They allow Special Rapporteurs to raise awareness of their mandates, which in turn may increase the pluralism of petitioners submitting information on violations – thereby potentially broadening access to human rights account­ ability. Though a rise in digital information submitted to the communications mechanism does raise challenges in terms of security, volume overload and verification processes, ict can also mitigate these challenges. Encryption and anonymity technologies support more secure information transmission, while information management tools and verification applications can facilitate faster and simpler information evaluation.33 That being said, getting to grips with these emergent and continually evolv­ ing technologies requires levels of digital literacy that do not yet seem to have 32 33

McPherson (n 19) 28–32. For an explanation of encryption and anonymity technologies and their relevance for human rights, see unhrc ‘Report of the Special Rapporteur on the Promotion and Pro­ tection of the Right to Freedom of Opinion and Expression, David Kaye’ (22 May 2015) un Doc A/HRC/29/32.

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permeated un human rights mechanisms, though ohchr appears well aware of its need to catch up.34 As mentioned, significantly augmenting in-house expertise – whether through a consultancy or through digital literacy training – would support this process, in part by familiarising and thus demystifying the use of ict and digital information within international human rights machin­ ery. Special Procedures and other mechanisms (such as Commissions of Inqui­ ry) are already confronted by the challenge of digital information on human rights violations that they are not equipped to analyse appropriately, as well as by the challenge of the sheer volume of such information.35 Given the tra­ jectory of the usage of digital technology to document and report on human rights violations, this situation is likely to become a more serious capacity gap if not addressed proactively. At the same time as Special Procedures invest in the opportunities of these technologies, however, they must remain aware of their opportunity costs. De­ voting resources such as time and money to the understanding and use of ict, in the context of a resource-scarce environment like the Special Procedures system, means that other activities must be foregone. Furthermore, an over­ reliance on ict-enabled petition information can carve new boundaries of inclusion and exclusion vis-à-vis human rights accountability that map onto power relations embedded in offline characteristics, such as gender, wealth and education levels. Victims and violations on the other side of the digital divide should not be overlooked simply because they are not documented digi­ tally. As such, the use of ict should complement rather than supplant tradi­ tional practices within the Special Procedures communications mechanism and more broadly. 34

35

The Office has, for example, been collaborating with organisations such as the ICT4Peace Foundation to develop a strategy to this end: see ICT4Peace, ‘ohchr Meeting in Geneva: Using icts to Strengthen Human Rights’ (ICT4Peace, 28 March 2014) accessed 11 February 2016. unhrc (n 6) paras 37–42.

chapter 10

Principle, Politics and Practice: The Role of un Special Rapporteurs on the Right to Adequate Housing in the Development of the Right to Housing in International Law Jessie Hohmann Abstract This chapter considers how the approaches of the various un Special Rapporteurs on housing have fed into the development of the content of the right to housing in international and domestic law. Here, I address two themes that emerge from the Reports of the Special Rapporteurs on adequate housing as central and enduring factors underlying the violation of the right. These themes are: women’s housing rights; and economic globalisation and the financialisation and marketisation of housing. I argue that, in their work on these two issues, the Special Rapporteurs have attacked in a deeply structural fashion the failure of States to ensure the right to adequate housing, and in doing so have provided an important – even radical – critique of the prevailing social and economic paradigm. In the context of a complex interaction among principles, politics and practice within which all Special Rapporteurs work these reports remain important normative statements on a world in which the right to adequate housing is possible, even if their impact on the ground has often been muted by those same political and practical factors.

Keywords housing – women – globalisation – reports – politics – financialisation

i

Introduction

This chapter considers how the approaches of the various United Nations Special Rapporteurs on housing have fed into the development of the content of

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the right to housing in international and domestic law.1 I first set out the history of the mandate of the un Special Rapporteurs on housing, and the general approach that the Rapporteurs have taken to their work. I then turn to consider in more detail two specific themes that the Rapporteurs have tackled. These are the right to adequate housing of women, and the impact of economic globalisation on the realisation (or otherwise) of the right to adequate housing. Concentrating on the thematic, annual and special reports,2 I argue that on these two issues the Special Rapporteurs have provided a deeply structural criticism of States’ failures to ensure the right to adequate housing, and in doing so have provided an important, even radical, critique of the prevailing social and economic paradigm. In the final section, I evaluate the importance of these reports, concluding that the work of the Special Rapporteurs on adequate housing is an immense achievement, even if it ultimately remains constrained by the politics and pragmatic constraints within which Special Rapporteurs must operate. All un Special Rapporteurs work within a complex matrix of principle, politics and practice. Political factors often influence the work of the un Human Rights Council, as they did the former Commission on Human Rights. These factors can direct which situations of human rights violation receive attention from the Human Rights Council, how they receive it and whether they receive any attention at all.3 Notably (as was the case with the first Rapporteur on housing) even the question of whether the Commission on Human Rights or another body, such as the un Sub-Commission on Human Rights, is responsible for the mandate may itself be political.4 At the same time, all Special Rapporteurs are constrained by certain practical factors, among them limited time 1 Throughout, I refer to the four Special Rapporteurs as the Special Rapporteurs on housing as this term encompasses the developing language of the mandate title over time. The research in this chapter is current to October 2015. 2 I concentrate here on the annual, thematic and special reports of the Special Rapporteurs (rather than country visits or communications, for example), because these reports demonstrate the existence of themes with worldwide relevance, and which – within the specifics of the mandate – the Special Rapporteurs have identified as those most important to be brought to international attention. 3 See generally R Freedman, ‘New Mechanisms of the un Human Rights Council’ (2011) 29 nqhr 289, 322–23 (discussing the Council) and 289–90 (discussing the former Commission); H Hannum, ‘Reforming the Special Procedures and Mechanisms of the Commission on ­Human Rights’ (2007) 7 Human Rights Law Review 73, 74. 4 T van Boven, ‘“Political” and “Legal” Control Mechanisms Revisited’ in M Bergsmo (ed), ­Human Rights and Criminal Justice for the Downtrodden: Essays in Honour of Asbjørn Eide (Brill 2003) 544.

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and money,5 and by necessity, by the specifics of the mandate itself which sets out the responsibilities and areas of competence of the Rapporteur, and which itself will reflect States’ political concerns.6 Furthermore, significant action on related issues is often occurring elsewhere within the United Nations system,7 which means that the Special Rapporteurs will have to coordinate with – or seek to hold their own against – other initiatives. The practical constraints are of course not unrelated to the political ones. For example, the continuation of a specific mandate may have more to do with political favour than the specifics of the human rights situation on the ground.8 What can be achieved by Special Rapporteurs is therefore limited through the confluence of politics and practice. Importantly, we must recognise that this not only constrains the mandate holders’ impact on the ground and their ability to have their recommendations translated into action. It can limit their ability to ask certain questions at the outset, or reach certain conclusions at the end point.9 As such, the normative principles developed in the reports of the Special Rapporteurs on housing, particularly with respect to a critique of, first, the violation of women’s right to adequate housing, and second, the prevailing paradigms of economic globalisation and the financialisation and marketisation of housing, should be understood as a major achievement. As is evident from the analysis below, the Special Rapporteurs’ work provides an important counterpoint to the dominant discourses of States over the course of the different mandates. Beginning in 1993, with the mandate of Rajindar Sachar, from the Sub-Commission on Human Rights,10 and 5

6 7 8

9 10

O Hoehne, ‘Special Procedures and the New Human Rights Council – A Need for Strategic Positioning’ (2007) 4 Essex Human Rights Review, 7 and 10 accessed 12 March 2016; S Subedi, ‘Protection of Human Rights through the Mechanism of un Special Rapporteurs’ (2011) 33 Human Rights Quarterly 201, 217. See also Winkler and de Albuquerque’s contribution to this collection. N Rodley, ‘On the Responsibility of Special Rapporteurs’ (2011) 15 International Journal of Human Rights 319, 328–29. Hannum (n 3) 79; Hoehne (n 5) s 4.1. M Limon and H Power, History of the United Nations Special Procedures Mechanism: Origins, Evolution and Reform (Universal Rights Group 2014) 14. Notably, the Special Procedures largely survived the review and rationalisation process that followed the establishment of the un Human Rights Council (unhrc), despite fears that many mandates would be discontinued. See O De Schutter, International Human Rights Law (cup 2010) 882. S Marks, ‘Human Rights and Root Causes’ (2011) 74 Modern Law Review 57, 71. un Commission on Human Rights (unchr) (Sub-Commission) Res 1992/26 (27 August 1992) un Doc E/CN.4/Sub.2/RES/1992/26; unchr Decision 1993/103 (4 March 1993); un Economic and Social Council Decision 1993/287 (28 July 1993).

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f­ollowing through the continuing un Commission on Human Rights/Human Rights Council Mandate established in 200011 to the current mandate holder Leilani Farha, the Special Rapporteurs have engaged directly with some of the deepest structural challenges facing the enjoyment of the right to adequate housing. Concentrating on the thematic, special and annual reports of the Rapporteurs, this chapter examines two enduring themes identified by the Special Rapporteurs, through which they have provided an important critique of the current economic, social and political paradigms that result in the violation of the right to housing of millions of people worldwide. These two issues are the rights of women to housing, and the commodification, globalisation and financialisation of housing and goods and services associated with it. ii

History of the Mandate and Approach of the Special Rapporteurs

Until 1994, the un Commission on Human Rights did not issue mandates for Special Rapporteurs on economic, social and cultural rights. It was felt that economic and social rights situations necessarily concerned the structural aspects of economies and societies, and were, therefore, not appropriate matters for the fact-finding missions and other work of Special Rapporteurs.12 Accordingly, economic and social rights mandates were initially created under the Sub-Commission on Human Rights. Thus it was under the auspices of this organisation that the first Special Rapporteur on housing worked. Mr Rajindar Sachar, an Indian lawyer and later High Court Judge, was appointed under the specific title of Special Rapporteur on Promoting the Realization of the Right to Adequate Housing.13 Sachar produced a working paper for the un in 1992.14

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unchr Res 2000/9 (17 April 2000) un Doc E/CN.4/RES/2000/9. The mandate was extended in 2007 by unhrc Res 5/1 (18 June 2007) un Doc A/HRC/RES/5/1; and then reviewed in unhrc Res 6/27 (14 December 2007) un Doc A/HRC/RES/6/27. The mandate was again extended in 2010 and 2014: unhrc Res 15/8 (30 September 2010) un Doc A/HRC/ RES/15/8; unhrc Res 25/17 (14 April 2014) un Doc A/HRC/RES/25/17. van Boven (n 4) 544. unchr 1992 (n 10). unchr (Sub-Commission) ‘The right to adequate housing: Working paper submitted by Mr. Rajindar Sachar, expert appointed pursuant to resolution 1991/26 of the Sub-­ Commission on Prevention of Discrimination and Protection of Minorities’ (12 June 1992) un Doc E/CN.4/Sub.2/1992/15.

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He was subsequently appointed as Special Rapporteur, and submitted three reports between 1993 and 1995.15 Sachar’s working paper and three reports as Special Rapporteur made a clear contribution to developing the conceptual clarity of the right to adequate housing in international law, including its normative content and States’ obligations. His reports fostered an understanding of the right to adequate housing that is broad and multifaceted. Working when the Committee on Economic, Social and Cultural Rights (cescr) had only begun to consider the nature of the right under the International Covenant on Economic, Social and Cultural Rights (icescr),16 and very few cases at international, regional, or domestic level existed to clarify state obligations or the content of the right, Sachar’s work reinforced the conceptual basis being created by the cescr, as evidenced particularly in its 1991 General Comment No 4 on the right to adequate housing.17 In the working paper,18 he identified the causes of the ‘international housing crisis’ as including ‘the failures of government and development policies’,19 ‘speculation and the commoditization of housing’20 and ‘structural adjustment programmes and debt’.21 From the beginning, he understood the denial of housing as ‘a structural injustice’,22 and stated that adequate housing must be seen as ‘an instrument for the promotion of justice, equality and peace’.23 Sachar took special care to spell out the legal nature of the right and the 15

16 17 18 19 20 21 22 23

unchr (Sub-Commission) ‘The Realization of Economic, Social and Cultural Rights: The Right to Adequate Housing: Progress Report Submitted by Mr. Rajindar Sachar, Special Rapporteur’ (22 June 1993) un Doc E/CN.4/Sub.2/1993/15; unchr (Sub-Commission) ‘The Realization of Economic, Social and Cultural Rights: The Right to Adequate Housing: Second Progress Report Submitted by Mr. Rajindar Sachar, Special Rapporteur’ (21 June 1994) un Doc E.CN.4/Sub.2/1994/20; unchr (Sub-Commission) ‘The Realization of Economic, Social and Cultural Rights: The Right to Adequate Housing: Final Report Submitted by Mr. Rajindar Sachar, Special Rapporteur’ (12 July 1995) un Doc E/CN.4/Sub.2/1995/12. International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 unts 3 (icescr). cescr ‘General Comment No 4: The Right to Adequate Housing (Art. 11(1) of the Covenant)’ (13 December 1991) un Doc E/1992/23. unchr (n 14). Ibid paras 22–25. Ibid paras 38–40. Ibid paras 50–51. Ibid para 16. Ibid para 17.

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specific state obligations for its realisation.24 He also focussed on legal aspects of enforcement,25 on legislative measures for enjoyment of the right,26 and on comparing the right to housing with the right to property,27 making his reports a dense and specific resource on the legal aspects of the right. Nevertheless, Sachar also detailed the shortcomings of a ‘legal approach’ to the right to housing,28 noting particularly the serious tensions between the ideal of legal rules and the practical reality of the ‘sheer irrelevance’ of top-down international law to most individuals seeking adequate housing conditions.29 He noted that ‘in most instances, it is not the law itself, but mobilization by affected persons and communities asserting, claiming and demanding their rights which will be absolutely fundamental to the housing rights they possess in law becoming a reality’.30 Thus, the right to adequate housing was understood from the beginning within much broader economic and social contexts, and the quest for its realisation was understood as profoundly political. Sachar also successfully elucidated the justiciability of the right to housing, drawing on prescient jurisdictions such as the Indian Supreme Court,31 and the cases of the European Court and Commission of Human Rights considering article 8 and the right to home and family life.32 His reports are an invaluable consolidation of domestic and regional practice, and overall strengthen and clarify the arguments around the right, its importance and the state obligations imposed by it. It can be argued strongly that his work has had an enduring impact on the central normative content, and approach to, the right to adequate housing in international law. Although the Commission on Human Rights began creating mandates on economic and social rights topics in 1994,33 the Commission did not revive a mandate on the right to adequate housing until 2000. At that point, Mr Miloon Kothari became the first Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living.34 Kothari, also Indian but an architect by training, held this mandate until 2008. 24 unchr 1993 (n 15) paras 21–82. 25 Ibid paras 77–86. 26 Ibid paras 108–12. 27 Ibid paras 65–76. 28 Ibid paras 102–07. 29 Ibid. 30 Ibid para 105. 31 unchr 1995 (n 15) paras 89–90. 32 unchr 1993 (n 15) paras 114–18. 33 Hoehne (n 5) 4. 34 unchr Res 2000/9 (n 11).

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The mandate had four main points of focus.35 First, the mandate had a practical or empirical strand, which included reporting on the status of the realisation of rights relevant to the mandate across the world,36 and exploring options for financing technical cooperation and assistance towards this aim.37 From the start, this gave the Rapporteur an explicit role in situating the right to adequate housing within a very wide context of the realisation of any rights relevant to the mandate. This unusually broad phrasing has been embraced by the Special Rapporteurs, and has resulted in an unusually ‘holistic’ approach to the understanding of the enjoyment of adequate housing.38 In practice, the Special Rapporteurs on housing have gone well beyond lip service to the interdependent and interrelated nature of human rights, and have embraced fully an understanding of housing as profoundly connected to the structural economic and political paradigms within which it is enjoyed or violated,39 as is discussed further below in Section iii. Second, the mandate focussed on creating avenues for dialogue and ­cooperation between and among different agencies of the un system, other international agencies and national governments.40 Third, it directed the ­Rapporteur to promote the right within the field operations and national offices of the un.41 This gave the Rapporteur the opportunity to mainstream housing rights issues into a host of other un Special Procedures, an ­opportunity that Kothari, in particular, took up wholeheartedly.42 In this respect, the envisaged audience for Kothari’s reports to the un was clearly un bodies and agencies, and he sought to impact on their day-to-day operations. His 2006 Comprehensive Review evidences the extensive discussions and 35 Ibid. 36 Ibid para 7(d)(i). 37 Ibid para 7(d)(v). 38 T McCarthy (ed), Attacking the Root Causes of Torture: Poverty, Inequality and Violence: An Interdisciplinary Study (World Organisation Against Torture 2006) 234. For an example of how a ‘holistic’ approach on the part of a Special Procedure might be challenged, see Winkler and de Albuquerque’s contribution to this collection. 39 Ibid. 40 unchr Res 2000/9 (n 11) paras 7(d)(ii) and 7(d)(iv). 41 Ibid para 7(d)(vi). 42 Kothari’s work and coordination with the Special Rapporteur on Violence Against Women, for instance, is detailed in unchr ‘Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, Miloon Kothari’ (8 March 2004) un Doc E/CN.4/2004/48, paras 42 and 45; unchr ‘Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, Mr. Miloon Kothari’ (1 March 2002) un Doc E/CN.4/2002/59, para 66.

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c­ ollaborations between the un Special Rapporteur and a host of other un agencies, programmes and treaty bodies that helped to mainstream housing issues into their work.43 Finally, the mandate called for the application of a gender perspective to the questions and issues encountered.44 Each of the Special Rapporteurs working under this mandate has been attentive to the question of gender and housing, but Kothari’s contribution to this area was particularly significant and is discussed further below in Section iii.A. Looking back, we can see that Sachar and Kothari were in a unique position, able to define a field of housing as a human rights obligation and concept when doubt as to its very status as a right still existed.45 In contrast, by the time that Raquel Rolnik became Special Rapporteur in 2008, she joined a rich debate on the right to adequate housing that was being vigorously conducted across the un, nongovernmental organisations and civil society, and by academics from around the world. Between 2008 and 2014, Rolnik fulfilled the mandate, the official title of which had become Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, and on the Right to Non-­Discrimination in this Context.46 Rolnik, a Brazilian, brought her experience as an urban planner and architect to the mandate, which had changed direction subtly but significantly in December 2007. The revised mandate instructed the Special Rapporteur to identify best practices and main challenges, including ‘protection gaps’ in realising the right, and to place particular emphasis on practical solutions for implementing the rights relevant to the mandate. The mandate to facilitate technical assistance remained, as did the gender perspective. But the emphasis on dialogue had moved to one that was more internally focussed within the un, and which explicitly cautioned against duplication of the work of other un bodies and agencies.47 Rolnik’s reports explicitly sought to speak to and engage with a broad audience, acknowledging that the very existence of the right was still unknown to many, including ‘most professionals, government officials and civil society activists … mainly because the debate on the issue 43

44 45 46 47

unchr ‘Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, Miloon Kothari’ (14 March 2006) un Doc E/CN.4/2006/41, paras 17–24. unchr Res 2000/9 (n 11) para 7(d)(iii). In his final report, Sachar responded to state arguments in international fora to the effect that the right was not a right at all. See unchr 1995 (n 15) paras 55–56. unhrc Res 6/27 (n 11). Ibid para 5.

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takes place in specialized circles and reports’.48 Invoking a wide range of academic and theoretical works as sources, her reports also exhorted action not only from the Human Rights Council, but directly from States and individuals, based on an understanding that the right to adequate housing cannot only be debated in technocratic circles and must instead be accessible to all, including rights holders themselves.49 Rolnik took on the mandate at a moment crucial for two reasons. First, her tenure coincided with the global financial and sub-prime mortgage crisis, with its far-reaching and in many instances disastrous implications for the enjoyment of the right to adequate housing. Accordingly, Rolnik produced two significant reports in this area. First she provided an important exposition of the operation of a globalised financial market on the enjoyment of the right to adequate housing.50 Second, she reported on the negative and discriminatory impact of credit policies on those living in poverty.51 She also undertook missions to the World Bank, specifically seeking to ensure its financing policies provided adequate safeguards for the right.52 She thus sought to ensure the right to adequate housing’s relevance and prominence not just with States, but with those financial actors that often wield great power over States’ economic policies. In these reports, Rolnik makes repeated demands that we imagine housing and land within a fundamentally different paradigm: as social and public goods, not as financial instruments or commodified market assets.53 48

un General Assembly (unga) ‘Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, and on the Right to NonDiscrimination in this Context’ (13 August 2008) un Doc A/63/275, para 23. 49 Ibid. 50 unhrc ‘Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, Raquel Rolnik’ (4 February 2009) un Doc A/HRC/10/7. 51 unga ‘Special Rapporteur on adequate housing as a component of the right to an adequate standard of living’ (10 August 2012) un Doc A/67/286. 52 unhrc ‘Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, Raquel Rolnik: Addendum: Mission to the World Bank’ (3 February 2013) un Doc A/HRC/22/46/Add.3, paras 57–69. See also unhrc ‘Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, Raquel Rolnik: Addendum: Preliminary note on the mission to the World Bank Group (26 October to 1 November 2010)’ (7 January 2011) un Doc A/HRC/16/42/Add.4. 53 See further the discussion in Section iii.B below; unhrc 2011 (n 52) para 10. See also R Rolnik and L Rabinovich, ‘Late-Neoliberalism: The Financialisation of Homeownership

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Second, she also came into the mandate at the time of a new Optional Protocol to icescr.54 The coming into force of the Optional Protocol might be hoped to once and for all have laid rest to suspicions about the right to adequate housing’s justiciability,55 but the ongoing resistance to the idea of individual enforcement, and perhaps also the specifics of the Optional Protocol’s enforcement machinery and standard of review,56 prompted the Special Rapporteur to report on the justiciability of the right once again.57 In June 2014, Canadian Leilani Farha took over the mandate.58 With her tenure, the mandate returns to a legally trained individual, this time head of the nongovernmental organisation Canada without Poverty.59 At the time of writing, Farha had produced three reports. The first report sets out her priorities, which include an overarching goal of dealing with the ‘implementation gap’ in enjoyment of the right, noting that ‘the well-elaborated norms and commentary on this right have not necessarily been translated into substantive progress’.60 Her proposed methods for achieving substantive progress include both the procedural, such as through facilitating national/international interaction,61 and the normative, such as through the further elucidation of

54 55

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57 58 59

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and the Housing Rights of the Poor’ in A Nolan (ed), Economic and Social Rights after the Global Financial Crisis (cup 2014) 57. Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (adopted 10 December 2008, entered into force 5 May 2013). See C de Albuquerque, ‘Chronicle of an Announced Birth: The Coming into Life of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights – The Missing Piece of the International Bill of Human Rights’ (2010) 32 Human Rights Quarterly 144; T Melish, ‘Introductory Note to the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights’ (2009) 48 International Legal Materials 256. B Porter, ‘The Reasonableness of Article 8(4): Adjudicating Claims from the Margins’ (2009) 27 Nordic Journal of Human Rights 39, 44; J Hohmann, The Right to Housing: Law, Concepts, Possibilities (Hart 2013) 30–31. unga (n 48). unhrc Res 25/17 (n 11). The terms of the mandate do not differ substantially from those under which Rolnik operated. Office of the un High Commissioner for Human Rights (ohchr) ‘Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, Ms. Farha’ (ohchr) accessed 12 March 2016. unga ‘Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context’ (7 August 2014) un Doc A/69/274, para 14. Ibid paras 20–25.

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standards and obligations such as progressive realisation.62 Important themes include involvement with the un’s urban sustainable development agenda, placing housing on the global development agenda,63 continued attention to the housing rights of the marginalised and most vulnerable,64 homelessness,65 and engagement with subnational governments.66 Farha’s credentials on women’s right to adequate housing were already established in her work with Kothari on his reports on this topic.67 Her first Annual Report specifically tackles the issues of local and subnational responsibility for housing rights within a framework of state obligations.68 In her most recent report at the time of writing, she calls for the right to adequate housing to lie at the heart of the un Habitat iii ‘new urban agenda’.69 She argues that a rights-based approach to urban development ‘can effect the kind of spatial, geographic, social and attitudinal change required to address the structural causes of exclusion and inequality’.70 iii

Structural Human Rights Violations and the Work of the Special Rapporteurs on Housing

In this section, I analyse the special, annual and thematic reports of the Special Rapporteurs in two areas: women’s right to adequate housing, and the impacts of globalisation and the financialisation of housing on the realisation of the right. The reports are a powerful critique of the social, economic and political structures that prevent the realisation of the right to adequate housing. Here, 62 63 64 65 66 67 68

Ibid paras 28–35. Ibid paras 83–89. Ibid paras 60–66. Ibid paras 67–69. Ibid paras 80–82. unchr ‘Women and adequate housing’ (26 March 2003) un Doc E/CN.4/2003/55, para 8. unhrc ‘Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context’ (22 December 2014) un Doc A/HRC/28/62. 69 The un’s Conference on Housing and Sustainable Urban Development (Habitat iii) will be held in October 2016, and Farha’s third annual report aims squarely at placing the right to housing at its heart and as its guiding principle: unga ‘Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context’ (4 August 2015) un Doc A/70/270, paras 1 and 9–10. 70 Ibid para 11.

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I analyse the important normative contribution contained in these reports, before turning to consider the impact of the Special Rapporteurs’ work on adequate housing in Section iv. A Women’s Right to Housing The issue of women’s access to and enjoyment of the right to adequate housing is not a niche or interest group one. Rather, as Rolnik puts it, ‘[t]he status of women’s right to adequate housing is central … to understanding the dynamics of gender inequality itself, both within and outside the home’.71 She continues that the issue is at ‘the heart of social inequality and discrimination’.72 This is because women’s lack of access to adequate housing is not merely a question of material needs, but also of inclusion in society: ‘When a woman is unable to access adequate housing and land mainly because she is a woman, she is … relegated to a subordinate and dependent position within society because of her gender’.73 Thus, the realisation of the right to adequate housing for women is ‘essential’ to overcoming oppressive and exclusive gender power structures.74 The Special Rapporteurs have provided a wealth of examples of how violations of the right to adequate housing generally have a greater impact on women. Sachar’s first progress report identified that ‘[i]t needs to be widely recognized that women bear the primary responsibility for sustaining and maintaining homes and are the worst affected by crisis situations in their country’s resource base’.75 Similarly, Kothari’s three studies on women and housing reveal the multiple ways in which women are at the forefront in providing housing and associated goods such as water, fuel and home-based labour, and are accordingly the most affected when housing rights are violated, including through forced evictions.76 The Special Rapporteurs have also identified that certain groups of women are particularly at risk of the violation of their right 71

unhrc ‘Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, Raquel Rolnik’ (26 December 2011) un Doc A/HRC/19/53, para 1. See also unchr 1993 (n 15) para 9(c). 72 unhrc (n 71) para 3. 73 Ibid. 74 Ibid. 75 unchr 1993 (n 15) para 9(c). 76 unchr ‘Women and Adequate Housing’ (25 February 2005) un Doc E/CN.4/2005/43, para 49.

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to adequate housing, through ‘double discrimination’. These include widows, female headed households, indigenous or tribal women, and women subject to domestic violence.77 Recognising that adequacy has different meanings for women than for men, and indeed different meanings for differently situated women,78 the Special Rapporteurs have sought to give more specific content to this term than it was given by the cescr in General Comment No 4.79 Kothari, for example, argues for a need to understand and apply both substantive equality and the intersectional approach to the concept of adequacy, so that each woman, in whatever specific group or at whatever specific stage of life, can realise adequate housing.80 Thus, in addition to the cescr’s seven elements,81 Kothari identified a further nine elements he considered necessary to evaluate the adequacy of housing, as follows: access to land, water and other natural resources; freedom from dispossession, damage and destruction; access to information; participation; resettlement, restitution, compensation, non-refoulement and return; privacy and security; access to remedies; education and empowerment and freedom from violence against women.82 Further, as Rolnik pointed out, each and every one of the elements of the right  to adequate housing needs to be applied with a gender perspective in order to ensure that housing is adequate for women.83 Thus, her interpretation of security of tenure entails an independent right of women to security of tenure to be explicitly recognised in law, regardless of the legal status of the women vis-à-vis any other individual in the house.84 With respect to habitability, she notes that gender-sensitive architecture and design can help promote 77 78 79

80 81 82 83 84

unchr (n 67) paras 27–34. unchr (n 76) paras 13 and 47. General Comment No 4 defines adequate housing as incorporating seven necessary elements: legal security of tenure; availability of services, materials, facilities and infrastructure; affordability; habitability; accessibility; location; cultural adequacy: cescr (n 17) para 8. For an analysis of the seven elements, see Hohmann (n 56) 20–28. unchr (n 76) para 47. cescr (n 17) para 8. unchr ‘Women and Adequate Housing’ (27 February 2006) un Doc E/CN.4/2006/118, para 11. unhrc (n 71) paras 31–52. Ibid para 34. See also Sachar on ‘essential homelessness’ below, text to nn 88–90.

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non-hierarchical uses of the home, and thus more equitable participation in household responsibilities across the family.85 The indivisibility of all human rights is more tangible with respect to the right to adequate housing than many other human rights. The cescr’s seven elements of the right in its General Comment No 4 are evidence of this fact: each element interacts in complex ways, not only with each of the others, but also with aspects of personal identity, the built environment, and the legal landscape in any State, and adequate housing cannot be enjoyed unless all are present.86 While the elements of the right to housing can be used to assess adequacy, when they are not present or enjoyed, they also strikingly demonstrate the intersectional nature of violations of the right to adequate housing. Thus, an intersectional approach to women and housing is ‘crucial’.87 Contributions of the Special Rapporteurs on housing in revealing the intersectional nature of the denial of the right to housing are significant. For example, the denial of rights to the home, as Sachar pointed out, is not only an issue of security of tenure, but can amount to homelessness itself. His development of the concept of the ‘essential homelessness’ of women provides a powerful analytical tool to illustrate the connection between de facto and de jure enjoyment of housing.88 This ‘essential homelessness’ occurs when women have no right to the home in which they are born, marry, or die.89 Independent security of tenure, not attendant on a relationship with another (normally male) person is thus fundamental to the enjoyment of adequate housing for women.90 Kothari particularly focussed on violence against women as an experience of violation of women’s right to adequate housing.91 The violence to which women are subjected in the home is not only a denial of equality, but may also constitute forced eviction if a woman has to flee her home to escape abuse.92 85 86 87

88 89 90 91 92

unhrc (n 71) para 49. Hohmann (n 56) 20–28 on General Comment No 4. See further Hohmann (n 56) ch 7 (on identity) and ch 8 (on the built environment). unhrc ‘Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, Miloon Kothari’ (13 February 2008) un Doc A/HRC/7/16, para 40. unchr 1995 (n 15) paras 45–49. Ibid para 46. unchr (n 67) para 54. See also unchr (n 76) para 40; Hohmann (n 56) 152–65 and 184–89. unchr (n 76) paras 41–48. unchr 2002 (n 42) para 66; unchr ‘Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari: Addendum: Summary of information transmitted to Governments and replies received’

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Poverty and lack of access to education make women more vulnerable to these abuses.93 The intersection of factors, such as lack of access to credit and finance, discriminatory or unequally enjoyed rights to land, and the operation of traditions that deny women rights to housing and property,94 means that women are more likely to be harmed in their houses, more likely to be denied their right to or enjoyment of adequate housing, and often have difficulty accessing the power and resources with which to contest these denials. Taken together, the reports of the Special Rapporteurs on housing have gone well beyond the work of the cescr in illuminating the ways in which women’s rights to adequate housing are violated, and the causes and consequences of these violations. However, I argue that the most important contribution to the understanding of women’s rights to adequate housing of the Special Rapporteurs is the constant insistence that the intersectional harms experienced by women, the lack of security of tenure, and violence, are not mere incidents or ‘accidents of history’.95 Rather, the work of the Special Rapporteurs on housing points importantly to the fact that these and other harms are naturalised and perpetuated by the structural denial of women’s equality.96 The denial of women’s right to adequate housing is perpetuated through political, economic, and social structures that remain stubbornly entrenched because those structures favour already empowered groups.97 As such, all of the Special Rapporteurs on housing have taken a strong stance against the root discrimination against women which continues at familial, societal and global levels. For example, Kothari noted that ‘violence against women is a manifestation of historically unequal power relations between men and women on both individual and societal levels’98 and that, for example, ‘persistent poverty, where women and others are forced to live in inadequate and insecure housing and living conditions, also exposes women to forms of gender-based violence, and arguably is itself a form of violence’.99

93 94 95 96 97

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(17 January 2005) un Doc E/CN.4/2005/48/Add.1, para 48. See further unchr 2004 (n 42) paras 41–57. unchr (n 67) paras 51 and 53. Ibid para 21. Marks (n 9) 67. unchr (n 67) paras 42–50. L Farha, ‘Is there a Woman in the House? Re/conceiving the Human Right to Housing’ (2002) 14 Canadian Journal of Women and the Law 118, 121–24; Hohmann (n 56) 152–65 and 184–89. unchr (n 76) para 42. See also unchr (n 82) para 32. unchr (n 76) para 41. See also unchr (n 82) para 32.

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Poverty and the denial of rights are demonstrated as linked, with fetters of subjugation that bind women not only within their families but also through the power relations of individuals in one State with those in another.100 The economic aspects which contribute to this situation of inequality are the subject of another enduring concern of the Special Rapporteurs on housing: globalisation, and the marketisation and financialisation of housing, to which I now turn. Marketisation, Financialisation and the Impacts of a Global Economy A second enduring concern of all of the Special Rapporteurs on housing emerges in their attention to the effects and implications of globalisation and a globalised economy on the enjoyment of the right to adequate housing. While the Special Rapporteurs on housing have not provided concrete definitions of globalisation, they have each made frequent references to the concept. Kothari’s understanding of globalisation drew on the work of other un bodies including particularly that of the Special Rapporteurs tasked with producing a study on globalisation and its impact on the full enjoyment of all human rights, and the work of the cescr including notably its statements on globalisation in 1988 and 1999.101 In these un documents,102 globalisation receives no single definition, but is clearly understood as a process of increased

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100 Hohmann (n 56) 159–65; A Hochschild, ‘The Nanny Chain’ (2000) 11(4) American Prospect 32. 101 unchr ‘Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Mr. Miloon Kothari, submitted pursuant to Commission resolution 2000/9’ (25 January 2001) un Doc E/CN.4/2001/51, para 56. Drawing on unchr (Sub-Commission) ‘Human rights as the primary objective of international trade, investment and finance policy and practice’ (17 June 1999) un Doc E/CN.4/Sub.2/1999/11; unchr (Sub-Commission) ‘The Realization of Economic, Social and Cultural Rights: Globalization and its impact on the full enjoyment of human rights: Preliminary report submitted by J. Oloka-Onyango and Deepika Udagama, in accordance with Sub-­Commission resolution 1999/8’ (15 June 2000) un Doc E/CN.4/Sub.2/2000/13; cescr ‘Statement of the un Committee on Economic, Social and Cultural Rights to the Third Ministerial Conference of the World Trade Organization (Seattle, 30 November to 3 December 1999)’ (26 November 1999) un Doc E/C.12/1999/9. Sachar addressed globalisation by name only in his final report, where he stated that: ‘We hear reports daily of growing economies, liberalization of trade regimes, globalization of the world market and other such fancy phrases, as if such things were all that mattered in our world and these issues were inherently good for humanity.’: unchr 1995 (n 15) para 16. Similarly, Kothari dedicated a section of his 2000 annual report to globalisation as an impediment to the realisation of the right to adequate housing, but did not define it as such, concentrating instead on its effects. See unchr (25 January 2001) un Doc E/CN.4/2001/51, paras 56–61. 102 unchr 1999 (n 101); unchr 2000 (n 101); cescr (n 101).

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internationalisation, supported by a ‘growing legal and institutional framework within which the regimes of contemporary international trade, finance and investment are being conducted’.103 Elsewhere, globalisation has generally been equated to the State’s weakening power in the field of economic and social action,104 although the relationship is better understood as one that involves a ‘lengthening distance’ between the individual and State, and a conscious choice about how and through which intermediaries power should be exercised, rather than a lack of power on the part of the State.105 It also generally entails the elimination of trade restrictions and government regulations that might infringe market operations, the prominence of the transnational corporation as a key actor, and – as a necessary corollary to the commitment to economic growth – ‘the promotion of voracious consumerism’.106 Although providing no single or simple definition, the un studies on which Kothari relies problematise the concept of globalisation from the outset, noting negative impacts on the realisation of human rights, the masking of state power behind the policies of international financial institutions, and the privileging of the global over the local and the traditional.107 Rolnik’s understanding of globalisation is informed by the work of scholars such as Marcuse, Kenna, Anderson, and Andreasson, who also question the value and underlying principles of globalisation, such as a commitment to the predominance of economic growth as a policy goal and the permeability of national borders to international capital movements.108 From the very first, the Special Rapporteurs on housing have undertaken a sustained critique of globalisation: in his first report, Sachar attacked the ‘continued indulgence by the world’s governments of citizens who are already better off’ through ‘skewed fiscal policies’ and the failure to reorder economic affairs to fulfil instead the right to adequate housing.109 Kothari identified globalisation as a priority issue for attention.110 He noted that the benefits of globalisation were unevenly felt across and within countries, with the poor

103 unchr 2000 (n 101) para 8. 104 W Felice, ‘The Viability of the United Nations Approach to Economic and Social Human Rights in a Globalized Economy’ (1999) 75 International Affairs 563, 586–88. 105 S Sassen, Territory, Authority, Rights (updated edn, Princeton up 2006) 319. See also unchr 2000 (n 101) para 11. 106 Felice (n 104) 586. See further T Jackson, Prosperity without Growth: Economics for a Finite Planet (Routledge 2009) ch 6. 107 unchr 2000 (n 101) paras 6–10; cescr (n 101). 108 This work is cited in unhrc (n 50) paras 43, 21 and 22 respectively. 109 unchr 1993 (n 15) para 9(e). 110 unchr 2001 (n 101) paras 56–61.

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everywhere experiencing the least advantage.111 He also noted an urgent need for a research agenda to determine whether economic globalisation was compatible with the enjoyment of land and housing rights at all.112 Rolnik also illuminated the ways in which the dominant economic paradigms push the privatisation and marketisation of land and the goods and services necessary for the enjoyment of adequate housing, failing to take account of the social nature and public goods inherent in land and housing even when those responsible for the policy admit that the market alone cannot ensure the right to adequate housing for all.113 Over time, the Special Rapporteurs on housing’s reports in this area have shifted in line with prevailing understandings of the role of the State. For example, at the turn of the millennium, globalisation was most often discussed as involving a significant diminution in the sovereignty and power of the State.114 Accordingly, Kothari sought to understand how the structural factors of the global economy impacted on the housing rights of the poor. He noted that under conditions of globalisation, economic inequalities were growing and with them the ‘number of humanity’s homeless or precariously sheltered persons’.115 Kothari posited that ‘globalization and the process of increasing economic integration have limited the role and capacity of States to provide adequate resources and other provisions which are often necessary’ to the fulfilment of the right to adequate housing and water.116 In Kothari’s understanding of the issue, States remain victims (though perhaps acquiescent ones) of outside global forces, although there is capacity for resistance in approaches such as participatory budgeting and through the democratic process.117 By the time Raquel Rolnik took on the mandate in 2008, it had become clear that in the vast majority of cases, States were central to, rather than on the sidelines of, the process of economic globalisation and that housing policies played a major role in the global economic picture. By this point, it was patently obvious that governments across the world had been heavily invested in housing as the very instrument of that economic globalisation, through the commodification and financialisation of housing within the globalised 111 112 113 114

Ibid para 57. Ibid para 61. unhrc 2011 (n 52) para 10. R Holton, Making Globalization (Palgrave 2005) 6; K Ohmae, The End of the Nation State (Free Press 1995). 115 unchr 2002 (n 42) para 50. 116 Ibid para 51. 117 unhrc (n 87) para 87.

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financial system.118 Moreover, it was clear that the financialisation of housing had significant implications for the potential realisation of the right to adequate housing.119 Thus, Rolnik’s first thematic report dealt explicitly with the housing, financial and economic crises unfolding at that time. Her report provides a clear and unequivocal exposition of the failings of the financialised housing system from a human rights perspective. Detailing the ‘fundamental flaws in current economic and housing policies’120 and the ‘inability of market mechanisms to provide adequate and affordable housing for all’,121 her report constitutes a stinging critique of globalised neo-liberal housing policies and their worldwide implications, and she argues that access to housing cannot be based solely on the ability to enter a housing market, as ‘income based competition … in human rights terms, becomes unacceptable discrimination’.122 She stressed in her recommendations that all actors should ‘fully recognize the multiple dimensions of housing, which is much more than a mere financial asset and has great implications for the individual, the community and society as a whole’.123 Further, she urged government intervention in both housing policies specifically,124 and in the market more generally.125 Her report and the recommendations included demonstrate the profound failure of the financialisation of housing to ensure or even respect the right to adequate housing. In 2012, Rolnik followed up this work with a report on housing finance policies and their impact on the poor.126 She concentrated on mortgage lending for low-income borrowers, the provision of capital subsidies to low-income groups to facilitate their entry into housing markets, and microfinance for housing 118 See e.g. M Aalbers, ‘The Financialization of Home and the Mortgage Market Crisis’ (2008) 12 Competition and Change 148; Rolnik and Rabinovich (n 53); P Langley, The Everyday Life of Global Finance: Saving and Borrowing in Anglo-America (oup 2008) 193–94; S Sassen, ‘When Local Housing Becomes an Electronic Instrument: The Global Circulation of Mortgages – A Research Note’ (2009) 33 International Journal of Urban and Regional ­Research 411, 419–20. 119 P Kenna, ‘Introduction’ in P Kenna (ed), Contemporary Housing Issues in a Globalized World (Ashgate 2014) 26–27; Rolnik and Rabinovich (n 53) 68–69 and 87; Langley (n 118) 127. 120 unhrc (n 50) para 18. 121 Ibid. 122 Ibid para 50. 123 Ibid para 78. 124 Ibid e.g. paras 79–83. 125 Ibid paras 86–87 and 89–90. 126 unga (n 51).

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construction and improvements,127 and held these up for scrutiny under a human rights lens. She concluded that, contrary to the predominant assumption that housing financial markets, ‘if well designed and regulated, can provide access to adequate housing for all segments of society’,128 these policies are in reality discriminatory against the poor, and are, overall, ‘incompatible with the full realization of the right to adequate housing of those living in poverty, failing to supply habitable, affordable and well-located housing solutions accessible to the poor’.129 Like Sachar and Kothari before her, she challenged not only the details of economic globalisation, but questioned both its effects, and the potential of the principles upon which it is based to measure up under a human rights framework at all. Accordingly, she called for a ‘paradigm shift’ from a financialised to a human rights-based approach to housing policies.130 Moreover, Rolnik was at pains to point out that these globalised financial policies have not been cheap solutions to States’ housing needs. Although couching their approaches in terms of non-intervention, ‘states still invest huge public resources in housing’.131 According to Rolnik, however, the beneficiaries of state intervention in financialised housing markets are seldom the poor.132 The conclusion is that States are not passive victims or merely acquiescent bystanders in a global housing market. Instead, they are central actors, and their policy choices deliberately empower some, while quietly sanctioning the fact that others will bear the brunt. The work of the Special Rapporteurs on economic globalisation and the financialisation of housing within a global financial economy thus presents a stringent critique and counterpoint to the prevailing economic and financial policies of States and inter- and multi-national financial institutions. The reports, with their lucid and repeated expositions of the impacts of these financial policies on the poor, the marginalised and the disempowered, illuminate the political choices – and costs in human terms – behind financial policies that are posited in neutral and technical language. Perhaps none of the Special Rapporteurs has made this point more eloquently than Sachar, who wrote in his final report in 1995:

127 Ibid para 15. 128 Ibid para 62. 129 Ibid para 64. 130 Ibid para 71. 131 Ibid para 69. 132 Ibid.

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If the world as a whole remains inadequately housed this will not be due simply to a lack of resources, deficient finances or insufficient land or materials, as is so often argued today. Rather, it will be a continuation of the misguided status quo, a tragically inequitable distribution of income and resources within and between nations, an attachment to the fiction of the all-providing market, the treatment of housing as a dispensable commodity and the ongoing marginalization of economic, social and cultural rights.133 Sachar’s statement is both powerful and eloquent, but its impact on the realisation of rights on the ground is less easy to ascertain. In the next section, however, we consider the contribution that the reports of the Special Rapporteurs on housing have made. What impact have they had on the development of the right, and on its realisation? iv

Housing Rights against the Grain: Assessing the Contribution of the Special Rapporteurs on Housing

In our prevailing political, economic and social system, far too few harms or deprivations are in fact subjected to a structural and intersectional human rights analysis.134 By examining the situation of housing rights violation through a housing rights lens, the Special Rapporteurs have demonstrated that poverty, mass displacement, forced evictions, disenfranchisement from political power, hunger, thirst, and other marginalisations are not mere accidents. Very often, they are the result of conscious political and economic choices taken within and by States, and the international organisations they make up. The Special Rapporteurs on housing have been only too aware that the denial of the right to adequate housing is a result of ‘planned misery’, that is ‘misery that belongs with the logic of particular socio-economic arrangements’.135 133 unchr 1995 (n 15) para 147. 134 Marks (n 9). On the difficulties of taking an intersectional approach in responding to an international human rights violation, see J Hohmann, L Buckner-Inniss and E Tramontana, ‘Kell v Canada: Revaluating the cedaw Decision in a Feminist Light’ in T Lavers and L Hodson (eds), Feminist International Judgments: Women’s Voices in International Law (forthcoming). 135 Marks (n 9) 75. Marks takes this phrase from Naomi Klein, The Shock Doctrine (Penguin 2007), who herself takes it from disappeared Argentine journalist Rodolpho Walsh. See Marks (n 9) 59.

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That the Special Rapporteurs have been able to make this connection between the necessary denial of the human rights of some, and the continued operation of the current global economic and political structures, is an immense achievement. As Susan Marks has pointed out, the very political and practical arrangements within which all Special Rapporteurs work act to limit the ways and extent to which the question of why human rights violations continue to occur is even asked.136 Marks has noted that many Special Rapporteurs show considerable and important attention to many of the structural or ‘root’ causes of human rights violations, but often cannot carry their investigation far enough. Analysing un work on arbitrary detention in Afghanistan,137 the un Human Rights Council’s response to the 2010 earthquake in Haiti,138 and the work of Special Rapporteur on the Right to Food, Olivier De Schutter,139 Marks notes that in the latter two examples, the relevant actors have taken a ­‘holistic’ and contextual approach with an ‘emphasis on poverty, discrimination, marginalisation and exclusion as structural bases of human rights violations’, and other ‘root causes’ of human rights violation.140 However, she argues that her case studies reveal three problems. First, the investigation into the causes of violations is ‘halted too soon’141 so that although the issue of vulnerability 136 Marks (n 9) 71. 137 Ibid 63–65, analysing Arbitrary Detention in Afghanistan: A Call for Action, Vol 1 – Overview and Recommendations (unama Human Rights 2009). 138 Marks (n 9) 65–67, analysing among others unhrc ‘Report of the Human Rights Council on its Thirteenth Special Session’ (2 February 2010) un Doc A/HRC/S-13/2. 139 Marks (n 9) 67–70, analysing in particular: O De Schutter, ‘Background Note: Analysis of the World Food Crisis by the un Special Rapporteur on the Right to Food, Olivier De Schutter’ (fao, 2 May 2008) 1 accessed 12 March 2016; unhrc ‘Report of the Special Rapporteur on the right to food, Olivier De Schutter: Crisis into opportunity: Reinforcing multilateralism’ (21 July 2009) un Doc A/HRC/12/31; O De Schutter, ‘Statement to the World Summit on Food Security: The Role of the Right to Food in achieving Sustainable Food Security’ (ohchr, 18 November 2009) 2 accessed 12 March 2016; O De Schutter, ‘The Right to Food and the Political Economy of Hunger: Twenty-sixth M ­ cDougall Memorial Lecture, Opening of the thirty-sixth Session of the fao Conference’ (fao, 18 November 2009) 7 accessed 12 March 2016; unhrc ‘Report of the Special Rapporteur on the right to food, Olivier De Schutter, Addendum: Large-scale land acquisitions and leases: A set of minimum principles and measures to address the human rights challenge’ (28 December 2009) un Doc A/HRC/13/33/Add.2. 140 Marks (n 9) 70. 141 Ibid.

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may be addressed, ultimately, the question about the overarching social, economic and political framework within which conditions of vulnerability are ‘systematically reproduced’ is never asked.142 She notes that this often results in a heavy emphasis on technical solutions,143 and state-oriented remedies.144 Second, Marks identified the problem that effects are treated as though they were causes: for instance, she questions whether arbitrary detention is the result of corruption and impunity of officials, or if, rather, the ‘chain of causation moves in the opposite direction’.145 Finally, she notes that causes might be identified, only to be then set aside.146 This is particularly the case where analysis of causes is foregrounded in the body of a report, but attention to remedying these causes is absent in the recommendations.147 In analysing the annual, thematic and special reports of the Special Rapporteurs on housing, we can see that they have, particularly in the areas of women’s right to adequate housing and the impacts of globalisation and financialisation, avoided the problems Marks identified. As the previous section demonstrates, each of the four Rapporteurs has been acutely aware of the structural causes of violations, and, more importantly, the economic, social and political framework within which they are reproduced.148 They have also argued for a different understanding of causes and effects. An important example is provided by Kothari, when he argued that persistent poverty is not only the cause of gender-based violence, but ‘arguably is itself a form of violence’.149 Finally, the Special Rapporteurs on housing have persisted in making recommendations that challenge States and international actors to eliminate the causes of violation: for instance, Rolnik has called for a ‘paradigm shift’ from financialisation to human rights as underpinning housing systems.150 Most recently, Farha has identified the structural causes of unequal and unsustainable urbanisation as underlying the violation of the right to adequate housing, and explicitly called for the right to housing to underpin the un’s new urban agenda in her recommendations.151 142 Ibid 71. 143 Ibid. 144 Ibid. 145 Ibid 72. 146 Ibid 73. 147 Ibid. 148 See above text to nn 18–30 (Sachar); 71–74 (Rolnik); 67 (Farha); 112, 114, 117 (Kothari). 149 unchr (n 76) para 41. 150 unga (n 51) para 71. 151 unga (n 69) paras 72–75.

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Nevertheless, by taking this radical stance, the Special Rapporteurs on housing have been fighting a strong tide of state opinion and the prevailing winds of global economics. As Marks is careful to point out, the three problems she identifies do not constitute personal shortcomings of particular persons or institutions: ‘Rather, they are limitations in the extent to which those institutions and officials are able to elucidate the root causes of whatever it is that concerns them, given the arrangements within which they operate’.152 For the Special Rapporteurs on housing, there have, similarly, been sacrifices on both political and practical fronts. On political fronts, the underlying radical position of the Special Rapporteurs has meant that even mild and constructive criticism of state housing policies has been met with highly politicised and ideological responses. Of course, some States remain hostile to external scrutiny of any type under the un Special Procedures, as several of the contributions in this volume make clear.153 Taking a stance that is explicitly critical of the structural economic, social and political frameworks upon which States operate appears to open Special Rapporteurs to additional avenues of criticism. Few nations would welcome such searching analysis of their failure to move social organisation forward so that women are not systematically and systemically marginalised and disempowered. And few States are ready to question the unequal financial benefits that flow from the current global economic paradigm. The country visit to the United Kingdom in 2013 by Raquel Rolnik is one example. Her preliminary findings, released in a press statement,154 were largely constructive and contained elements of praise.155 Nevertheless, the uk Government’s response was outraged and unequivocally ideological, amounting in some instances to a personal attack on the Special Rapporteur’s character, religion and political views.156 It is perhaps ironic that Marks selects the work of the un 152 Marks (n 9) 71. 153 See amongst others the contributions of Gaer, Limon, and Freedman and Crépeau to this collection. 154 ohchr ‘Press Statement by the United Nations Special Rapporteur on adequate housing: End mission to the United Kingdom of Great Britain and Northern Ireland, 29 August to 11 September 2013’ (ohchr, 11 September 2013) accessed 12 March 2016. 155 Ibid. See also unhrc ‘Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, Raquel Rolnik: Addendum: Mission to the United Kingdom of Great Britain and Northern Ireland’ (30 December 2013) un Doc A/HRC/25/54/Add.2. 156 J Hohmann, ‘Provoking Debate: The un Special Rapporteur and the Right to Housing in the uk’ (Oxford Human Rights Hub Blog, 27 September 2013) accessed 12 March 2016. See also A Nolan, ‘Grant Schapps should reconsider his ill-informed un “bedroom tax” outrage’ (Guardian Comment, 13 September 2013) accessed 12 March 2016; A Gentleman and P Butler, ‘Ministers Savage un Report Calling for Abolition of uk’s Bedroom Tax’ (Guardian Online, 3 February 2014) accessed 12 March 2016. For comments amounting to a personal attack, see M Seamark, ‘Raquel Rolnik: A dabbler in witchcraft who offered an animal sacrifice to Marx’ (Mail Online, 12 September 2013) accessed 12 March 2016. Nunatsiaq News, ‘Aglukkaq slams un envoy’s agenda on the right to food’ (Nunatsiaq Online, 17 May 2012) accessed 12 March 2016. For more on this point, see the contributions of Freedman and Crépeau and Shaheed and Parris Richter to this collection. See also A Dawar, ‘un investigators accused of having “leftist agendas”’ (Daily Express Online, 6 February 2015) accessed 29 June 2016. Mandate of the Special Rapporteurs on housing (n 11). unhrc (n 50) paras 79–80. unchr 1993 (n 15) paras 159–65.

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The clearest measurement of the impact of the work of the Special Rapporteurs on housing would be explicit references to their embrace in the development of national and international laws, policies and case law. We could also hope to find the ideas of the Special Rapporteurs on housing mirrored in these developments, albeit without attribution. As a matter of practice, such developments could translate into the realisation of the right to adequate housing for individuals, families and communities. As a matter of politics, they would be evidence of changing attitudes to, and embrace of, fundamentally different ways of thinking about housing and its relationship to the people who live in it. Thus far, the effect of the Special Rapporteurs’ development of the themes of women’s right to adequate housing, and the impacts of financialisation and globalisation on the right to adequate housing has not been embraced by States or reflected in state practice. However, at the level of principle, the un Special Rapporteurs on housing have provided a set of normative statements that demonstrate that the world can be conceived of differently. The powerful critique, and alternative vision offered by them, remains important now, and available to States, civil society and international organisations into the future. Whether the choices that the Special Rapporteurs on housing have made between politics, practicality and principle have been the right ones is debatable. Indeed, the Special Rapporteurs themselves have taken different approaches to striking this balance.162 A more practical and less structural approach might have made gains for some who currently lack the right to adequate housing, a more adept political positioning might have ensured adequate housing for others. Ultimately, however, the Special Rapporteurs on housing have been firm in their principles, believing that only structural change can achieve the realisation of the right to housing for all. Even to make these statements of principle represents a notable achievement.

162 In her first report, Farha noted that ‘the well elaborated norms and commentary on the right to housing’ had not in fact ‘led to substantive progress’: unga (n 60) para 14.

chapter 11

Life as a un Special Rapporteur: The Experience of the un Special Rapporteur for Human Rights in Cambodia Surya P. Subedi Abstract The mandate on the situation of human rights in Cambodia is stronger than many other Special Procedures mandates and one of the oldest. The mandate derives from both the Paris Peace Accords, a multilateral treaty, of 1991 and the resolutions of the un Human Rights Council. The chapter author completed the full six years of his mandate in 2015. Since the mandate for Cambodia has traditionally been perceived as a broad mandate, covering human rights issues as well as political issues having direct impact on human rights, the mandate holder defined the mandate as he went along, by taking a macro rather than micro approach to protecting and promoting human rights. Accordingly, he produced four substantial and substantive reports focussing on judicial, parliamentary, electoral and land reform. Some of the recommendations he made have been implemented by the Government, and some others are in the process of being implemented. This chapter provides an overview and analysis of the approach adopted by the author in implementing his mandate.

Keywords Cambodia – country mandates – States – cooperation – judiciary – parliament – ­elections – land – reforms

i

Introduction

The objective of this chapter is to share my experience – with regard to both challenges and achievements – as the longest serving un Special Rapporteur * This chapter is based on a presentation that the author made at a workshop on the un System of Special Procedures in November 2014 at the University of Nottingham and a public lecture that he delivered at the University of Leeds on 5 May 2015 to mark the end of his sixyear tenure as the un Special Rapporteur for Human Rights in Cambodia. © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004304703_013

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for human rights in Cambodia between 2009 and 2015. It is basically a firsthand account of the interplay between law, politics and diplomacy. This chapter will begin by outlining the history of the Cambodia mandate. Next will be an analysis of my approach during my time as the country-specific mandate holder for Cambodia. Finally, it will outline my accomplishments during my tenure for the promotion and protection of human rights in that country. ii

The Cambodian Mandate

The un human rights mandate in Cambodia is one of the oldest and strongest. This is because the legitimacy of the un mandate in Cambodia is based on two separate international instruments. The first is a multilateral treaty known as the Paris Peace Agreements concluded in 1991 at the Paris Peace Conference, which includes provisions for the appointment of a Special Rapporteur to monitor the situation of human rights in the country.1 The second is the resolutions adopted previously by the un Commission on Human Rights and since 2006 by the Human Rights Council.2 The nature of the Cambodian mandate has changed over the years insofar as it now is a softer mandate under which the mandate holder is primarily supposed to provide assistance to the Government to improve the situation of human rights in the country. As such, I saw it as more of a mandate to assist the Government with the management 1 The mandate derives from art 17 of the ‘Agreement on a Comprehensive Political Settlement of the Cambodia Conflict’ (signed 23 October 1991) and art 3 of the ‘Agreement Concerning the Sovereignty, Independence, Territorial Integrity and Inviolability, Neutrality and National Unity of Cambodia’ both contained in un Security Council (unsc) and un General Assembly, ‘Letter dated 30 October 1991 from the Permanent Representatives of France and Indonesia to the United Nations addressed to the Secretary-General’ (1991) un Doc S/23177 and A/46/608. The Agreements were signed in Paris on 23 October 1991 at the final meeting of the Paris Conference on Cambodia. They were the culmination of more than a decade of negotiations. The Agreements, also known as the Paris Agreements or Accords, invited the Security Council to establish the United Nations Transitional Authority in Cambodia and to provide it with the mandate set out in the Agreements. The Council fully supported the Paris Agreements in its unsc Resolution 718 (31 October 1991) un Doc S/RES/718. 2 The mandate was established by the un Commission on Human Rights in unchr Res 6 (1993) un Doc E/CN.4/RES/1993/6; and the most recent un Human Rights Council resolution renewing the mandate is unhrc Res 30/23 (2 October 2015) un Doc A/HRC/RES/30/23. Before 2008, the Cambodia mandate was held by a Special Representative of the Secretary-­ General for Human Rights in Cambodia. The mandate holder was appointed by the Secretary-­General of the United Nations, although he still reported to the Human Rights Council and formerly to the General Assembly and the Commission on Human Rights.

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of ­transition rather than finger-pointing. As a country that has gone through nearly 30 years of conflict, Cambodia has its own challenges in moving forward. Since Cambodia suffered a great deal due to the proxy war fought by foreign powers on Cambodian soil for their own global and regional interests,3 there has existed some degree of apprehension about the activities of the un mandate holders in the country. Influenced by socialist ideas, the mindset of the people in power in Cambodia has been authoritarian, and the willingness to embrace human rights and the culture of plurality has historically been weak in the country.4 Relations between the successive un Special Rapporteurs and the Government of Cambodia have been controversial since the creation of the un mandate for the country in 1993. The work of the Special Rapporteurs in Cambodia has been a rollercoaster journey for each of the mandate holders since then, and my experience was no different. When I was appointed in March 2009, relations between the previous un Special Rapporteur and the Government had broken down, and the country was heading towards greater authoritarian rule. The leader of the opposition had to flee the country in the face of the politically motivated criminal charges and arrest by the Government.5 There were genuine fears that the country, with its tragic past, would witness violence yet again. Given the history of the country and confrontational relations between my predecessors and the Government,6 when I was appointed I had to tread a careful path. I started to build bridges and restore lines of communications with the Government, adopting a constructive approach designed to bring about positive results by engaging the Government in reform and employing diplomatic skills to this effect. I contacted some moderate leaders of the ruling Cambodian People’s Party, the Cambodian Ambassador to the un in Geneva who had consented to my appointment and some Cambodian civil society leaders both within and

3 See L Jones, ‘asean intervention in Cambodia: from Cold War to conditionality’ (2007) 20 The Pacific Review 523, discussing the political nature of intervention by asean States in Cambodia. 4 For a critical analysis of the impact of the un and other international agencies upon human rights in Cambodia, see C Hughes, ‘Transnational Networks, International Organizations and Political Participation in Cambodia: Human Rights, Labour Rights and Common Rights’ (2007) 14 Democratization 834. 5 ‘Cambodia: Opposition Politicians Arrested, Forced to Flee’ (Human Rights Watch, 7 Feb­ruary 2005) accessed 9 February 2016. 6 See eg ‘Cambodian pm denounces un envoy’ (bbc News, 26 March 2006) accessed 9 February 2016.

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outside of the country. I billed my first mission as a ‘listening tour’ or a ‘diplomatic mission’. iii

An Agenda for Reform

I took a macro rather than a micro approach to tackling human rights problems in Cambodia, and gave constructive recommendations in this regard. My attempt was to paint a picture on a bigger canvass. Perhaps being a person born and brought up in a country with towering mountains, I have a natural tendency to see things further afield, on the wider horizon from a hilltop, rather than in the immediate periphery. Therefore, when I began my work in Cambodia I believed it important to grapple with the broader picture in the country and decided to examine the whole structure of governance that led to human rights violations rather than limiting myself to examining the situation of human rights in a narrow thematic area. There was a liberal democratic constitution in Cambodia as well as national institutions to protect the rights of the people.7 Despite this, human rights violations were a daily occurrence and these national institutions had not been effective in protecting the rights of people. I thought there was something fundamentally wrong at the heart of governance in Cambodia, which led to human rights violations. Accordingly, I proposed to the Government that I would like to examine the effectiveness of state institutions responsible for upholding people’s rights such as the judiciary, parliament, national election committee and the national institutions responsible for land management and resolution of land disputes. Whether or not the people in the Government understood my approach, they consented to it. A Judiciary I began my work by assessing the whole political structure of the country and produced four substantive and substantial reports focussing on judicial, parliamentary, and electoral reform and on the impact of economic and other 7 For text of the Constitution of Cambodia, see accessed 9 February 2016. Richmond and Franks critically analyse the process of peace building in Cambodia, examining the Constitution as a component of the liberal peace building project: OP Richmond and J Franks, ‘Liberal hubris? Virtual peace in Cambodia’. (2007) 38 Security Dialogue 27.

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land concessions on people’s lives.8 Collectively, these four reports provided an analytical picture of democracy, human rights and the rule of law in the country and, as with most Special Procedures’ reports, are used by civil society actors, human rights defenders, un agencies, donor agencies and other actors interested in human rights within the country concerned. Not surprisingly, as a lawyer by both training and profession, I thought I should begin my work by examining the effectiveness of the judiciary in protecting people’s rights. I examined the ability of the judiciary to deliver justice and to command the respect, trust, and confidence of the people. After conducting two fact-finding visits to the country focussing on the judiciary I identified a number of shortcomings in the functioning of the judiciary and my annual report in 2010 focussed on recommendations to address those shortcomings.9 The purpose of this assessment was to identify the ways and means of strengthening the capacity of the judges to protect and promote human rights. After my two fact-finding missions, I realised that the reasons why the judiciary was not able to enjoy the reputation it should were manifold. While some of the roadblocks were attributable to the historical legacy of the Khmer Rouge period, during which the judiciary was dismantled and judges and lawyers killed, there were a variety of other factors that contributed to it. On the basis of the analysis of the judiciary that I carried out, I wrote a report on enhancing the independence and capacity of the judiciary and made a series of recommendations to the Government including enacting three different sets of laws to this effect.10 I recommended that two new laws, that is, the Law on the Status of Judges and Prosecutors and the Law on the Organization and Functioning of the Courts, should be enacted. I also recommended that the Law on the Organization and Functioning of the Supreme Council of

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unhrc ‘Report of the Special Rapporteur on the Situation of Human Rights in Cambodia, Surya P Subedi’ (16 July 2012) un Doc A/HRC/21/63; unhrc ‘Report of the Special Rapporteur on the Situation of Human Rights in Cambodia, Surya P Subedi: A Human Rights Analysis of Economic and other Land Concessions in Cambodia’ (11 October 2012) un Doc A/HRC/21/63/Add.1/Rev.1; unhrc ‘Report of the Special Rapporteur on the Situation of Human Rights in Cambodia, Surya P Subedi’ (2 August 2011) un Doc A/HRC/18/46; unhrc ‘Report of the Special Rapporteur on the Situation of Human Rights in Cambodia, Surya P Subedi’ (16 September 2010) un Doc A/HRC/15/46. un Doc A/HRC/15/46 (n 8) in particular paras 66–102 containing the recommendations. unhrc ‘Report of the Special Rapporteur on the Situation of Human Rights in Cambodia, Surya P Subedi’ (15 August 2014) un Doc A/HRC/27/70.

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Magistracy should be amended.11 These three long-overdue fundamental laws were enacted in autumn 2014. These laws are by no means perfect, but I believe that they provide a framework for improvement in the future. Therefore, I welcomed their enactment, but pointed out the lack of consultation with civil society and transparency during the process.12 B Parliament After examining the judiciary I turned my attention to Parliament, which had been operating basically as a rubber-stamp institution subservient to an allpowerful executive. The Cambodian Parliament had faced the same institutional and structural upheavals faced by the country as a whole in the preceding 40 or so years. Like the judiciary, Parliament and parliamentary culture had to be rebuilt from scratch following the systematic destruction of all democratic institutions during the Khmer Rouge period.13 After conducting two further fact-finding missions, I identified a number of shortcomings in the workings of Parliament in general and the National Assembly in particular. The role of Parliament had been limited to overseeing the work of the executive. With this in mind, I made a series of recommendations for parliamentary reform designed to enable members of Parliament to hold the executive to account for violations of human rights and to protect the rights of the electorate.14 C National Election Committee After my work on parliamentary reform, the focus of my activity was on electoral reform. This is because free and fair elections are underpinned by respect for international human rights norms. Indeed, article 25 of the International Covenant on Civil and Political Rights (to which Cambodia is a State Party) provides that everyone has the right to take part in the conduct of public affairs in the country and to vote (and to be elected) ‘at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors’. During my fact-finding missions I received a large amount of information from people and institutions that included allegations of irregularities or of 11 12

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un Doc A/HRC/15/46 (n 8) 16. Office of the un High Commissioner for Human Rights (ohchr) ‘Cambodia: Lack of Consultation on key laws sets worrying patters for future legislations, warns un expert’ (27 May 2014) Media Statement. un Doc A/HRC/18/46 (n 8). Ibid paras 36–54.

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systemic problems that undermined the country’s ability to hold free and fair elections. I carried out my own independent assessment of the situation. I argued that reforms should be carried out to ensure that elections in Cambodia are free and fair and that Cambodians can exercise their right to democratic governance in a free political environment. I stated that free and fair elections could take place only when there was a free political environment and the people were able to exercise their rights and freedoms, such as freedom of expression and assembly and the right to stand for election. To hold credible elections, the Government must ensure high standards in line with its international human rights obligations before, during and after the casting of votes. It must also ensure the independence of the National Election Committee.15 There were major flaws in the administration of elections in Cambodia, and urgent and longer-term reforms were needed to give Cambodians confidence in the electoral process and in the workings of the National Election ­Committee.16 Accordingly, I made a series of recommendations for electoral reform, the main one of which was to grant constitutional, independent and autonomous status to the National Election Committee. After I submitted my report on electoral reform with a set of recommendations, I faced the wrath of the Government. The Prime Minister made a public statement denouncing my reports on both electoral and land reform and stated that Cambodian electoral system was robust and was working well.17 Undeterred from my mission I responded to the criticisms from the Prime Minister in a diplomatic and professional manner,18 which seemed to move the Prime Minister from an aggressive position into a defensive one. Eventually, owing partly to national and partly to international pressure and support for my recommendations, the National Assembly passed a bill on 1 October 2014 turning the National Election Committee into a constitutional body, implementing one of my key and long-standing recommendations.19 15 16 17 18

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un Doc A/HRC/21/63 (n 8) paras 51–58. Ibid paras 51–58. M Sokchea and A Seiff, ‘Hun Sen Lambasts rights rapporteur’ The Phnom Penh Post (5 ­October 2012) 1. I wrote a letter to the editors of all major newspapers responding to the criticism of the Prime Minister. See S Subedi, ‘Mutual respect can bridge differences of opinion’ The Phnom Penh Post (8 October 2012). H Reaksmey, ‘Lawmakers Enshrine Election Panel in Constitution’ The Cambodia Daily (2 October 2014). The bill tabled before Parliament was sent to my office by the SecretaryGeneral of the National Assembly on 22 August 2014.

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D Economic Land Concessions The issues associated with land and housing rights are largely specific to Cambodia.20 Most of the issues concerning land management and the evictions of people from land are the result of one of the most horrendous human tragedies of modern times; that is, the movement of people in huge numbers from east to west and from north to south in search of sanctuary during the conflict in Cambodia. Millions were forced to leave the capital and other cities and towns during the rule of the Khmer Rouge; many other millions traumatised by the conflict fled from their homes to save their lives. The situation was further complicated when the notion of the communal ownership of land was introduced during the period between 1979 and 1989.21 When relative peace returned to Cambodia, people began to return from the countryside to their homes and land, and those who had gone abroad to seek refuge began to come back, but many had lost evidence proving their ownership of such property. During the rule by the Khmer Rouge, nobody was allowed to own anything. Official records were systematically destroyed, and lawyers and surveyors were killed, to make way for the so-called ‘new society’. Thus, the task of land management and land titling was, and is still, a mammoth one in the country. However, the manner in which the authorities dealt with the urban poor, those on the margins of society, and the indigenous communities had been haphazard. The Government had no proper national guidelines on land evictions. Although there seemed to be some politicisation of eviction issues and some of the problems may have been created by the so-called land-grabbers and land-speculators, many of the evictions by the authorities had been rather heavy-handed, favouring the rich at the expense of the poor. Although the Government had gone to great lengths to protect the interests of the urban poor, it had not followed international human rights standards in evicting people from disputed land sites; nor had the Government followed the provisions of the 2001 Land Law22 in doing so.23 The Government was slow in distributing 20

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For a thorough analysis of land rights issues in Cambodia, see K Un and S Sokbunthoeun, ‘Land Rights in Cambodia: How Neopatrimonial Politics Restricts Land Policy Reform’ (2011) 84 Pacific Affairs 289. There is a wealth of literature about Cambodia and the Khmer Rouge. Some good background reading includes B Kiernan, The Pol Pot Regime: Race, Power, and Genocide in Cambodia under the Khmer Rouge 1975–79 (Yale up 2014); E Gottesman, Cambodia after the Khmer Rouge: Inside the Politics of Nation Building (Yale up 2004). Land Law of Cambodia (30 August 2001) NS/RKM/0801/14. For an in-depth analysis of failures to implement the 2001 Land Law, see S So, ‘Land rights in Cambodia: An unfinished reform’ (2010) 97 Asia Pacific Issues accessed 9 February 2016. Many media outlets and ngo have covered this issue, including Irin News, e.g. ‘Analysis: Why land rights matter in Cambodia’ Irin News (15 March 2013) accessed 9 February 2016; Cambodian Centre for Human Rights, e.g. ‘Land Reform Project’ accessed 9 February 2016; The Guardian, e.g. N Pilorge, ‘Conflict over land in Cambodia is taking a dangerous turn’ The Guardian (25 September 2012)